Columbia  Sanibersit    Hectare* 


THE  MECHANICS  OF  LAW  MAKING 

THE  CARPENTIER  LECTURES 
1913 


COLUMBIA  UNIVERSITY  PRESS 
SALES  AGENTS 

NEW  YORK: 
LEMCKE  &  BUECHNER 

30-82  WE3T  27TH  STREET 

LONDON : 

HUMPHREY  MILFORD 
AMEN  CORNER,  E.G. 

TORONTO : 

HUMPHREY  MILFORD 

25  RICHMOND  ST.,  W. 


COLUMBIA    UNIVERSITY  LECTURES 


THE  MECHANICS  OF 
LAW  MAKING 


BY 


COURTENAY   JLBERT,   G.C.B. 

CLERK  OF  THE  HOUSE  OF  COMMONS 


COLUMBIA   UNIVERSITY   PRESS 
1914 

All  rights  reserved 


COPYBIQHT,  1914, 

BT  COLUMBIA  UNIVERSITY  PRESS. 
Set  up  and  electrotyped.     Published  April,  1914- 


J.  S.  Cushing  Co.  —  Berwick  &  Smith  Co. 
Norwood,  Masi.,  U.S.A. 


PREFACE 

THIS  volume  contains  the  Carpentier  Lectures 
delivered  by  me  in  October,  1913,  subject  to  some 
prunings,  and  with  the  addition  of  matter  for  the 
delivery  of  which  time  did  not  suffice.  I  have  repro- 
duced freely  passages  previously  published  in  my 
Legislative  Methods  and  Forms,  and  elsewhere,  but 
where  I  have  borrowed  without  acknowledgment, 

the  borrowing  has  been  from  myself. 

C.  P.  I. 


-:\^i  /»  —> 


CONTENTS 


I.     THE  LEGISLATURE  AND  THE  DRAFTSMAN 

PAGE 

English  and  American  legislation  compared.  The  British  Parlia- 
ment a  sovereign,  the  American  Congress  a  non-sovereign  body. 
Government  legislation  in  England.  Complaints  of  desultory  legis- 
lation in  England.  The  draftsman  a  government  official.  Qualifi- 
cations of  a  good  draftsman.  Illustration  of  a  drafting  dilemma. 
Eligibility  of  women  under  County  Councils  Act  ....  1 

II.  REFORM  OF  THE  ENGLISH  STATUTE  BOOK 

Edward  VI's  Discourse  on  the  Reformation  of  Abuses.  Sir 
Nicholas  Bacon's  scheme.  James  I.  Francis  Bacon.  The  Com- 
monwealth. Reports  of  1796.  The  Statutes  of  the  Realm.  Lord 
Brougham's  Commission  of  1833.  Subsequent  Commissions.  In- 
dexing. Statute  Law  Revision  Acts.  The  Statutes  Revised.  Con- 
solidation. The  Statute  Law  Committee.  Office  of  parliamentary 
counsel  to  Treasury 24 

in.    THE  COMPARATIVE   STUDY  OF  LEGISLATION 

The  English  Society  of  Comparative  Legislation.  Origin.  Col- 
lects information  about  statute  law.  List  of  questions  sent  to  vari- 
ous governments.  Summaries  of  current  legislation.  Need  of  better 
information.  Need  of  a  recognized  organ  for  study  of  comparative 
legislation.  Value  of  the  study 44 

IV.     ORIGIN  AND   FUNCTIONS   OF  THE  PARLIAMEN- 
TARY  COUNSEL'S   OFFICE   IN  ENGLAND 

Procedure  by  petition.  Legislation  by  bill.  Henry  VIII  as  drafts- 
man. Committee  of  the  Privy  Council.  The  judges.  Drafting  in 
the  eighteenth  century.  William  Pitt.  Establishment  of  parlia- 
mentary counsel's  office  in  1869.  Its  staff  and  functions.  Growth 

of  its  responsibilities 56 

vii 


viii  CONTENTS 

V.     DUTIES  OF  A  GOVERNMENT  DRAFTSMAN 

PAGE 

Preliminary  labours  of  a  draftsman.  Sources  of  information. 
Royal  commissions.  Parliamentary  committees.  Blue  books.  Con- 
ferences before  and  after  preparation^  bills.  Work  during  passage 
of  bills  through  the  House 70 

VI.     RULES  FOR  THE   GUIDANCE   OF  DRAFTSMEN 

Bentham's  treatise  on  Nomography.  Lord  Thring's  Practical 
Legislation.  Thring  on  Gladstone  and  Disraeli.  The  Army  Act 
of  1881.  Conveyancing  and  drafting.  Considerations  for  a  drafts- 
man. Practical  hints 91 

VII.     FORMS  OF  LEGISLATION 

Consolidation  bills.  Amending  bills.  Legislation  by  reference. 
Delegation  of  legislative  powers.  Provisional  orders.  Orders  in 
Council.  Statutory  rules.  Growing  importance  of  administrative 
legislation.  Continental  analogies.  Advantages  and  disadvantages 
of  delegated  legislation 123 

Vni.     CODIFICATION 

Bentham  on  codification.  Progress  of  codification.  Origin  and 
history  of  French  Civil  Code.  The  First  Revolution  and  Napoleon. 
The  German  Civil  Code.  The  Indian  Codes.  The  Indian  Succes- 
sion Act  and  the  Law  of  Moses.  Causes  of  English  indifference  to 
codification.  Do  Codes  impede  legal  changes,  legal  literature,  or 
legal  doctrines  ?  The  French  example 150 

IX.     SOME  CHARACTERISTICS  OF  MODERN 
LEGISLATION 

Comparative  study  of  legislation  facilitated  by  (1)  general  agree- 
ment as  to  the  principles  of  procedure,  (2)  common  origin  of  modern 
legislatures.  Napoleon's  conception  of  legislation.  Modern  legisla- 
tion not  usually  concerned  with  amending  rules  of  common  law. 
Bulk  of  modern  parliamentary  legislation  administrative.  Necessity 
of  legislative  changes.  Means  of  improving  statute  law.  English 
and  American  procedure  compared 181 

INDEX  201 


THE  LEGISLATURE  AND  THE  DRAFTSMAN 

WHEN  President  Butler  invited  me  to  give  a  course  of 
lectures  on  the  Carpentier  foundation,  he  told  me  that  there 
is  at  the  present  time  a  great  amount  of  interest  in  the 
United  States  on  the  subject  of  bill  drafting  and  improve- 
ment hi  the  form  of  statutes ;  that  your  legislatures  are  slow 
hi  accepting  the  suggestion  of  seeking  technical  assistance 
in  the  preparation  of  statutes ;  and  that  you  have  little  exact 
information,  and  still  less  experience,  upon  which  to  determine 
the  best  method  of  organising  and  conducting  expert  draft- 
ing service.  I  have  heard  the  same  thing  from  other  sources. 
For  instance,  I  have  heard  a  good  deal  about  what  has  been 
done  by  Dr.  McCarthy  and  his  friends  in  Wisconsin,  and  I 
am  indebted  to  Mr.  Herbert  Putnam,  your  Librarian  of 
Congress,  for  a  most  useful  memorandum  on  bill  drafting 
and  legislative  reference  bureaus,  and  to  him  and  to  Mr. 
Parkinson  of  the  Legislative  Drafting  Research  Fund,  and 
to  Mr.  David  Thompson,  for  some  very  interesting  reports 
and  other  documents  relating  to  the  agencies  which  have 
been  established  or  proposed  for  the  drafting  of  legislative 
measures,  and  also  for  the  collection  and  provision  of  ma- 
terials required  for  the  purpose  of  legislation.  And  I  gather 
from  these  documents  that  in  the  opinion  of  some  competent 
authorities  useful  hints  may  be  derived  by  your  legislators 
from  the  legislative  experiences  of  other  countries,  including 
England.  Now  I  happen  to  have  had  a  good  deal  of  ex- 
perience in  the  craft  of  drawing  legislative  measures,  for 

B  1 


2  THE  MECHANICS  OF  LAW  MAKING 

I  have  held  in,  my  time  the-  posts  of  parliamentary  counsel 
or  government  doafi-sinaii  in  England,  and  of  law  member 
of  the  Governor-general's  Council  in  India.  And,  remember- 
ing as  I  do  the  great  kindness  which  I  have  always  received 
from  your  countrymen  when  I  have  applied  to  them  for 
information  about  their  institutions,  I  felt  it  almost  incum- 
bent on  me  as  a  duty  to  accede  to  President  Butler's  request, 
and  to  endeavour  to  place  at  your  disposal  such  results  of  my 
special  experience,  and  such  special  knowledge  acquired  in 
the  practice  of  my  craft,  as  might  possibly  be  of  service  to 
you.  If  you  care  to  listen  to  what  can  be  said  by  a  veteran 
draftsman  on  his  special  subject,  I  shall  be  grateful  for  your 
patience  and  forbearance. 

I  had  thought  at  one  time  of  entitling  my  lectures  "The 
Making  of  Laws."  But  I  came  to  the  conclusion  that  this 
would  be  too  ambitious  a  title,  and  might  be  misleading. 
It  might  suggest  the  names  of  the  great  law-givers  of  the 
world  —  historical  or  mythical  —  such  as  Hammurabi, 
Moses,  Lycurgus,  Solon,  Justinian,  Napoleon.  It  is  not  of 
such  high  themes  that  I  propose  to  discourse.  My  aim  is 
much  more  modest  and  practical,  and  it  is  in  order  to  indicate 
the  limitations  of  my  subject  that  I  propose  to  describe  it 
as  the  Mechanics  of  Law  Making. 

It  is  always  useful  to  compare  our  institutions  with  those 
of  other  countries.  From  such  measure  of  success  as  our 
neighbours  have  obtained  we  may  derive  instruction  and 
encouragement ;  from  their  failures  we  may  derive  cautions 
and  warnings,  and  also  consolation.  In  any  case  we  obtain 
a  juster  and  more  complete  notion  of  what  we  ought  to  aim 
at,  how  we  should  set  to  work,  and  how  much,  in  this  im- 
perfect world,  we  may  reasonably  hope  to  effect.  The  best 
I  can  do  for  you  is  to  give  you  some  of  the  results  of  my 


THE  LEGISLATURE  AND  THE  DRAFTSMAN        3 

special  knowledge  and  experience,  and  leave  you  to  draw 
such  inferences  as  may  appear  to  you  to  be  usefully  applicable. 

But  before  doing  so  I  must  utter  some  words  of  warning. 
The  conditions  of  legislation  in  England  are  very  different 
from  the  conditions  of  legislation  in  the  United  States, 
whether  in  Congress  or  in  the  State  legislatures;  and  it  is 
only  with  many  doubts,  qualifications,  and  reservations  that 
one  can  venture  to  apply  English  experience  to  American  facts. 

Among  the  many  differences,  two  stand  out  with  special 
prominence.  The  first  difference  arises  from  the  limitations 
on  the  powers  of  your  legislatures.  The  Parliament  at  West- 
minster is  sovereign  in  a  sense  in  which  no  American  legis- 
lature, whether  Congress  or  a  State  legislature,  is  sovereign. 
Parliament,  some  sage  of  the  law  is  supposed  to  have  said,  — 
sayings  of  this  kind  are  usually  attributed  to  Coke, — Parlia- 
ment can  do  anything  except  turn  a  man  into  a  woman. 
There  are  a  great  many  things-  which  Parliament  would  not 
venture  to  do,  would  not  think  of  doing,  would  be  far  too 
sensible  to  attempt.  But  there  are  very  few  things,  if  any, 
which  a  court  of  law  could  prevent  it  from  doing.  I  am  not 
aware  of  any  case  in  which  an  Act  of  our  Parliament  has 
been  declared  invalid  by  a  court  of  law.  It  would  be  very 
difficult  to  find  or  suggest  any  ground  on  which  its  invalidity 
could  be  successfully  urged.  People  sometimes  talk  about 
an  English  Act  as  being  unconstitutional.  What  we  mean 
in  England  by  'unconstitutional'  is  something  which,  in 
our  opinion,  is  not  in  accordance  with  the  fundamental 
principles  of  our  constitution.  But  the  adjective  is  often 
used  merely  as  a  political  epithet  indicating  disapproval,  on 
grounds  which  may  or  may  not  be  weighty.  And,  in  any 
case,  it  has  no  legal  connotation;  it  signifies  nothing  of 
which  our  courts  of  law  could  take  cognizance. 


4  THE  MECHANICS  OF  LAW  MAKING 

In  this  country  the  word  has  a  very  different  signification, 
and  you  are  all  familiar  with  cases  in  which  an  American 
statute  has  been  declared  by  a  competent  court  to  be  invalid, 
and  has  thereby  been  deprived  of  its  legal  effect.  This  is, 
of  course,  because  the  powers  of  your  legislatures  are  legally 
limited  by  the  constitution  of  the  United  States,  and  by  the 
constitutions  of  the  several  States  which  the  legislatures 
represent.  Those  who  frame  and  take  part  in  passing  your 
laws  have  constantly  to  bear  these  constitutions  in  mind, 
just  as  those  who  prepare  and  make  bye-laws  and  statutory 
rules  in  England  have  to  bear  in  mind  the  limitations  on  the 
powers  which  are  being  exercised.  If  they  failed  to  do  so, 
they  would  find  their  labours  frustrated  by  the  legitimate 
action  of  the  courts.  English  courts  can  and  sometimes  do 
drive  a  coach  and  four  through  an  English  Act  by  discovering 
and  declaring  authoritatively  that  it  means  something 
different  from  what  it  is  supposed  to  mean.  But  this  is 
a  process  of  interpretation,  not  of  disallowance.  Its  exercise 
may  show  that  the  legislature  has  not  used  its  powers  in 
such  a  way  as  to  render  its  meaning  clear.  It  does  not  show 
that  the  legislature  has  exceeded  its  powers.  These  are 
two  different  things.  The  draftsman  of  an  American  statute 
has  to  guard  against  two  risks,  that  of  its  being  misinter- 
preted and  that  of  its  being  disallowed.  The  draftsman  of  an 
English  Act  has  only  to  guard  against  one  of  these  risks. 
But  that  risk  alone  is  enough  to  task  seriously  his  knowledge, 
his  accuracy,  and  his  powers  of  expression.  By  misinter- 
preted I  do  not  mean  wrongly  interpreted  —  that  would  be 
a  reflection  on  the  judges  —  I  only  mean  interpreted  in  a 
sense  different  from  that  intended  or  supposed  by  some  of 
the  authors  of  the  measure. 

The  British  Parliament,  then,  is  sovereign.     The  United 


THE  LEGISLATURE  AND  THE  DRAFTSMAN         5 

States  Congress  and  the  legislatures  of  the  several  States 
are  not  sovereign.  The  powers  of  your  legislatures  are,  as 
you  know,  and,  as  an  Englishman  soon  discovers,  defined, 
limited,  and  restricted  in  many  ways  by  law,  and  the  ten- 
dency of  your  modern  State  constitutions  apparently  is  to 
multiply  and  increase  these  limitations  and  restrictions,  to 
exclude  many  matters  from  the  competency  of  the  legis- 
lature, to  limit  the  duration  and  frequency  of  legislative 
sessions,  and,  in  some  cases,  to  transfer  powers  from  the 
elected  legislature  to  the  general  body  of  electors  by  such 
devices  as  the  initiative  and  the  referendum.  In  the  United 
States  the  courts  are  charged  not  only  with  the  duty  of  in- 
terpreting laws  made  by  the  legislatures,  but  also  with  the 
duty  of  determining  the  validity  of  laws  so  made,  of  deciding 
whether  any  particular  law  so  made  is,  or  is  not,  within  the 
competency  of  the  legislature  which  made  it  or  affected  to 
make  it.  Thus,  for  instance,  in  the  United  States  the  validity 
of  an  Income  Tax  Act  may  be,  and  has  been,  questioned  in 
a  court  of  law.  In  England  the  effect  of  an  Income  Tax 
Act  is  often  questioned  in  a  court  of  law,  but  the  validity 
of  the  Act  could  not  be  so  questioned.  Since  I  began  to 
put  together  the  notes  for  these  lectures  I  have  come  across 
a  useful  and  suggestive  little  book  by  Mr.  Chester  Lloyd 
Jones,1  and  I  observe  that  the  first  part  has  for  its  heading 
"Limitations  on  Legislative  Action."  Now  in  my  country  a 
heading  such  as  this  would  be  needed  in  a  treatise  on  bye-laws 
or  statutory  rules,  or  in  a  treatise  on  legislation  in  British 
India,  or  in  one  of  our  great  self-governing  dominions  where 
the  powers  of  the  legislatures  are  limited  and  defined  by 
written  constitutions.  But  it  would  not  be  needed  in  a 

1  Statute  Law  Making  in  the  United  States,  Boston.     The  Boston  Book 
Company.    1912. 


6  THE  MECHANICS  OF  LAW  MAKING 

treatise  on  English  statute  law.  The  legislative  powers  of  the 
British  Parliament  are  unlimited ;  at  least  they  are  not  limited 
by  law. 

Let  me  give  an  illustration  of  the  differences  between 
the  powers  of  the  Parliament  at  Westminster  and  the  powers 
of  the  legislatures  in  the  United  States.  I  learn  from  Mr. 
Lloyd  Jones's  book  that  several  of  your  legislatures  have 
passed  statutes  about  what  he  calls  "  Title  Requirements," 
statutes  of  which  the  object  is  to  prevent  the  inclusion  of 
multifarious  matters  in  the  same  law,  and  the  inclusion  in 
any  legislative  measure  of  provisions  incongruous  with  its 
descriptive  title.  Our  eighteenth  century  statute  book  con- 
tains some  bad  specimens  of  what  used  to  be  called  "hodge- 
podge Acts,"  Acts  containing  a  number  of  miscellaneous 
enactments  huddled  together  without  reference  to  their 
congruity.  For  instance,  a  Window  Tax  Act  of  1747  con- 
tains a  section  declaring  that  all  existing  and  future  statutes 
which  mention  England  are  also  to  extend  to  Wales  and 
Berwick  upon  Tweed,  though  not  particularly  named.1  Now 
such  monstrosities  as  these  no  longer  deface  our  statute 
book.  But  their  recurrence  has  been  prevented,  not  by 
statute,  but  by  our  rules  of  parliamentary  procedure,  by 
improvements  in  our  parliamentary  practice,  and  by  the 
vigilance  of  the  authorities  of  the  House  of  Commons ;  that 
is  to  say,  of  the  Speaker  and  the  chairmen  of  committees, 
acting  with  the  advice  and  assistance  of  the  officers  of  the 
House.  If  the  House  should  be  of  opinion  that  the  subject- 
matter  of  a  bill  would  be  more  properly  dealt  with  by  two 
or  more  bills,  it  would  direct  that  the  bill  be  divided  ac- 
cordingly. If  the  Speaker  should  come  to  the  conclusion 

1  This  section  still  survives,  and  is  the  sole  survivor  among  the  provisions 
of  the  Act  into  which  it  found  its  way. 


THE   LEGISLATURE  AND  THE   DRAFTSMAN         7 

that  a  particular  provision  in  a  bill  falls  outside  the  proper 
scope  of  the  bill  as  indicated  by  its  title  and  general  character, 
he  could,  under  his  authority,  stop  the  further  progress  of 
the  bill.  If  the  Speaker  should  think  that  the  title  of  a  bill 
is  insufficient  or  inappropriate,  he  might  suggest  its  amend- 
ment at  the  proper  stage.  And  such  amendments  are  not 
infrequently  made,  without  the  intervention  of  the  Speaker 
or  any  other  authority,  when  the  measure  in  question  is 
restricted,  extended,  or  otherwise  altered  in  the  course  of 
parliamentary  discussion.  If,  as  frequently  happens,  the 
Speaker  or  a  chairman  of  a  committee  is  of  opinion  that 
a  suggested  amendment  or  new  clause  is  outside  the  proper 
scope  of  the  bill,  he  will  rule  it  out  of  order  and  not  allow  it 
to  be  proposed. 

But,  in  England,  when  a  bill  has  been  passed  and  has 
become  law,  there  can  be  no  question  of  its  invalidity 
on  the  ground  of  misdescription.  Such  a  question  could 
not  be  raised  before  our  courts.  The  courts  would  hold 
that  the  question  of  misdescription,  or  of  the  propriety  or 
impropriety  of  including  a  particular  provision  in  a  particular 
Act,  is  a  question  which  the  legislature  must  settle,  and  must 
be  presumed  to  have  settled,  and  was  not  one  for  the  courts 
to  decide.  Our  courts  would  know  that  there  is  nothing 
of  which  our  House  of  Commons  —  I  speak  of  that  House 
as  the  predominant  partner  in  our  legislature  —  that  there 
is  nothing  of  which  our  House  of  Commons  is  more  jealous 
than  of  its  autonomy,  of  its  exclusive  power  to  regulate  its 
own  practice  and  procedure  without  any  interference  by  any 
external  authority.  This  jealousy  recently  received  a  con- 
spicuous illustration  in  the  discussions  on  a  recent  Act, 
about  which  we  have  heard,  are  still  hearing,  and  are  likely 
to  hear  a  good  deal  in  England,  and  about  which  you  have 


8  THE  MECHANICS  OF  LAW  MAKING 

doubtless  heard  something  over  here.  I  mean  the  Parliament 
Act  of  1911.  That  Act  regulates  the  relations  between  the 
two  Houses  of  Parliament.  It  draws  a  distinction  between 
what  it  calls  money  bills,  a  term  specially  defined,  and  other 
bills,  and  enacts  that  a  money  bill,  unless  assented  to  within 
a  limited  time  by  the  -House  of  Lords,  and  any  other  bill, 
after  having  been  passed  three  times  by  the  House  of  Com- 
mons in  three  successive  sessions,  and  after  a  specified  in- 
terval, may  be  presented  for  the  royal  assent,  and  become 
law  without  the  concurrence  of  the  House  of  Lords.  But, 
it  was  asked,  when  the  measure  was  under  discussion, 
who  was  to  determine  what  was  a  money  bill?  And 
who  was  to  decide  whether  the  stages  required  by  the 
Act  had  been  duly  passed  and  whether  the  formalities  re- 
quired by  the  Act  had  been  duly  observed?  Several  ex- 
ternal authorities,  including  the  courts  of  law,  were,  as  was 
natural,  suggested  for  this  purpose.  But  the  House  of  Com- 
mons would  have  none  of  them.  It  is  for  the  Speaker  of 
the  House  to  determine  and  certify  under  the  Act  whether 
a  bill  is,  or  is  not,  a  money  bill.  It  is  for  the  Speaker  to 
determine  and  certify,  in  the  case  of  other  bills,  whether  the 
provisions  of  the  Act  have  been  duly  complied  with.  And 
the  certificate  of  the  Speaker  is  to  be  conclusive,  and  is  not 
to  be  questioned  in  any  court  of  law.  Nor  does  the  Act 
go  into  details  as  to  the  procedure  to  be  observed  in  passing 
these  bills  through  the  House  of  Commons.  All  such  matters 
are  to  be  determined  by  the  House  itself.  There  could  not 
be  a  stronger  instance  of  the  assertion  by  the  House  of 
Commons  of  its  paramount  and  exclusive  autonomy. 

This  sovereignty  of  Parliament  is  one  important  difference 
to  be  always  borne  in  mind  in  comparing  American  legis- 
latures with  the  British  Parliament.  Another  and  perhaps 


THE  LEGISLATURE  AND  THE  DRAFTSMAN        9 

even  more  important  point  of  difference  is  the  sharp  line 
of  distinction  which  you  draw  in  the  United  States,  but 
which  we  do  not  draw  in  the  United  Kingdom,  between  the 
functions  of  the  legislature  and  the  functions  of  the  executive ; 
the  mode  in  which  and  the  extent  to  which  the  theory  or 
doctrine  of  the  separation  of  powers  —  a  doctrine  for  which 
we  are  indebted  mainly  to  Montesquieu  —  is  applied  by 
and  forms  an  integral  part  of  your  constitution.  In  England 
the  prime  minister  and  the  members  of  his  cabinet,  the  lead- 
ing ministers  of  the  Crown,  who  represent  the  executive 
power,  always  are,  and  practically  must  be,  members  of 
the  legislature.  In  the  United  States  neither  the  President, 
nor  any  member  of  his  cabinet,  can  be  a  member  of  Congress. 
In  England  all  the  more  important  bills,  and  an  enormous 
proportion  of  those  which  become  law,  are  introduced  by 
some  member  of  the  government,  by  some  one  who  sits  on 
the  Treasury  bench,  and  are  carried  through  Parliament 
on  the  responsibility  of  the  government,  by  means  of  the 
authority  and  influence  which  the  government  exercises, 
and  by  use  of  the  large  share  of  parliamentary  time  to  which 
the  government  is  entitled.  These  bills  are  called  govern- 
ment bills  as  distinguished  from  private  members'  bills. 
It  is  with  this  class  of  bills,  and  with  this  class  only,  that  the 
English  government  draftsman,  the  parliamentary  counsel 
to  the  Treasury,  who  holds  the  office  which  I  once  held,  is  con- 
cerned, except  when  he  is  called  upon,  as  he  occasionally  is, 
to  criticise  the  form  of  private  members'  bills  and  to  mould 
into  better  shape  such  of  them  as  are  given  a  helping  hand  by 
the  government,  on  condition  of  accepting  any  amendments 
which  the  government  may  consider  necessary.  But  in  the 
legislatures  of  the  United  States  there  is  no  Treasury  bench, 
there  are  no  government  bills.  Every  bill  is  what  would  be 


10  THE  MECHANICS  OF  LAW  MAKING 

called  in  England  a  private  member's  bill.  No  doubt,  a 
president  or  governor  who  combines  political  tact  and  judg- 
ment with  force  of  character  can,  by  the  exercise  of  personal 
influence,  do  a  great  deal  to  shape  the  course  of  legislation. 
But,  technically,  I  suppose,  all  that  he  can  do  is  to  rec- 
ommend legislation  on  a  particular  subject,  or  to  suggest 
informally  the  expediency  of  amending  in  a  particular 
direction  legislative  measures  proposed,  or  to  exercise  his 
limited  power  of  veto  over  measures  which  meet  with  his 
disapproval  either  in  form  or  in  substance.  And  even 
these  powers  of  intervention  are,  I  understand,  apt  to  be 
looked  upon  with  some  amount  of  jealousy  and  suspicion, 
as  encroachments  by  the  executive  on  the  proper  func- 
tions of  the  legislature.  Cabinet  government,  as  it  is  un- 
derstood and  practised  in  England,  is  based  on  the  close 
co-operation,  interaction,  and  interdependence  of  the  legis- 
lature and  the  executive.  Presidential  government,  as  it 
is  understood  and  practised  in  the  United  States,  is  based 
on  the  separation  and  independence  of  the  legislature  and 
the  executive.  Each  system  has  its  advantages  and  dis- 
advantages. The  differences  between  them  affect  legisla- 
tion in  every  form  and  at  every  stage. 

These  two  differences,  first,  the  sovereignty  of  Parliament 
as  compared  with  the  limited  powers  of  American  legislatures, 
and,  secondly,  the  co-operation  of  executive  and  legislative 
functions  in  England  as  compared  with  the  separation  be- 
tween the  legislature  and  the  executive  in  the  United  States, 
are  perhaps  the  most  cardinal  differences  between  English 
and  American  methods  of  legislation.  There  are  other 
differences,  also,  on  some  of  which  I  may  have  to  touch  here- 
after, and  at  some  of  which  I  shall  glance  at  this  stage. 

One  of  them  is  the  distinction  which  is  drawn  at  West- 


THE  LEGISLATURE  AND  THE  DRAFTSMAN       11 

minster,  but  which  is  not  drawn,  or  at  all  events  is  not  drawn 
in  the  same  way  or  to  the  same  extent  over  here,  between 
what  we  call  public  bills  and  what  we  call  private  bills.  We 
recognise  the  distinction  very  clearly  in  our  legislative  pro- 
cedure. The  precise  point  at  which  the  boundary  line  is  to 
be  drawn  between  the  two  classes  of  bills  is  not  always  quite 
easy  to  determine,  but  the  distinction  of  principle  is  clear 
enough.  The  object  of  a  public  bill,  as  we  use  the  term,  is 
to  alter  the  general  law.  The  object  of  a  private  bill  is  to 
alter  the  law  relating  to  some  particular  locality,  or  to  confer 
rights  on,  or  release  from  liability,  some  particular  person 
or  persons.  The  procedure  for  passing  private  bills l  differs 
materially  from  the  procedure  for  passing  public  bills  and 
the  distinction  between  the  two  classes  of  measures  is  rec- 
ognised also  in  our  classification  of  statutes.  A  public  bill, 
when  it  becomes  law,  is  placed  among  our  public  general 
Acts.  A  private  bill,  when  it  becomes  law,  is  placed  in  the 
volumes  containing  local  and  personal  Acts. 

Another  difference,  which  also  strikes  an  Englishman  very 
forcibly  when  he  looks  at  a  collection  of  American  statutes, 
is  that  you  regulate  by  statute,  by  direct  action  of  the 
legislature,  a  vast  number  of  matters  which  we  should  leave 
to  be  regulated  by  executive  action,  by  administrative  orders, 
by  orders  in  council,  or  by  what  we  call  provisional  orders 
and  statutory  rules;  that  is  to  say,  orders  and  rules  which 
are  made  by  executive  authorities  under  powers  delegated 
by  the  legislature,  and  which  in  some  cases  require  approval 
or  confirmation  by  the  legislature  before  they  can  take  full 
effect  as  law.  Of  course  this  difference  is  very  closely  con- 
nected with  the  separation  which  you  make  between  legis- 

1  On  this  procedure  see  Mr.  Bryce's  address  to  the  New  York  Bar 
Association,  printed  in  his  University  and  Historical  Addresses. 


12  THE   MECHANICS  OF  LAW  MAKING 

lative  and  executive  powers.  Your  legislatures,  having 
been  warned  off  the  province  of  the  executive,  are  constantly, 
at  least  so  it  seems  to  us,  trespassing  over  the  boundaries 
of  that  province.  Our  executive,  you  might  perhaps  reply, 
is  constantly  taking  upon  itself  functions  which  belong  to 
the  legislature.  I  do  not  say  that  our  way  is  the  best,  but 
it  certainly  does  present  some  undeniable  advantages. 
This  subject,  the  subject  of  delegated  legislative  powers, 
is  one  to  which  I  shall  return  hereafter. 

I  have  referred  to  the  dissatisfaction  which  is  alleged  to 
exist  with  the  form  of  your  statute  law.  Dissatisfaction 
of  that  kind  is  by  no  means  confined  to  the  United  States. 
It  exists,  and  has  found  vigorous  expression,  not  only  in 
the  United  Kingdom,  but  in  most  continental  countries. 
Indeed,  I  do  not  know  of  any  country  which  is  in  so  happy, 
or,  shall  I  say,  in  so  apathetic  a  condition  that  its  citizens 
do  not  grumble  with  the  work  of  its  legislators.  To  do  so, 
if  they  are  free  citizens,  is  their  privilege  and  their  duty. 
Legislation  is  largely  based  upon  grumbles  —  they  used  to 
be  called  grievances  in  the  times  of  the  Plantagenet  Parlia- 
ments —  it  cannot  claim  to  be  exempt  from  them.  The 
ordinary  citizen  will  grumble,  and  as  to  the  lawyer,  he  has 
a  special  feud  of  his  own.  The  modern  English  lawyer  is 
apt  to  regard  common  law  and  statute  law  as  hereditary 
foes.  '  My  Lady  of  the  Common  Law/  the  lady  with  whose 
character,  history,  and  adventures  you  have  recently  been 
made  familiar  by  Sir  Frederick  Pollock,1  '  My  Lady  of  the 
Common  Law/  he  would  be  inclined  to  say,  l  regards  with 
jealousy  the  rival  who  arrests  and  distorts  her  development, 
who  plants  ugly  and  inartistic  patches  on  her  vesture,  who 
trespasses  gradually  and  irresistibly  on  her  domain/ 

1  The  Genius  of  the  Common  Law.    Columbia  University  Press.    1912. 


THE  LEGISLATURE  AND  THE  DRAFTSMAN       13 

As  I  have  referred  to  Sir  Frederick  Pollock,  I  am  tempted 
to  make  some  quotations  from  an  interesting  essay  which 
he  published  more  than  thirty  years  ago  on  "Some  Defects 
of  the  Common  Law,"  an  essay  in  which,  it  is  fair  to  say, 
he  metes  out  with  equal  severity  criticisms  of  our  English 
statute  law  and  criticisms  of  our  English  case  law.  With 
his  criticisms  of  case  law  I  am  not  at  present  concerned,  but 
his  remarks  on  statute  law  are  very  pertinent  to  the  matter 
with  which  I  have  to  deal.  They  occur  under  the  heading 
"Desultory  Legislation" :  — 

In  order  to  legislate  in  a  satisfactory  manner  upon  any  given 
subject,  several  qualifications  are  necessary  in  the  law-giver.  In 
the  first  place,  he  must  know  accurately  what  the  existing  law  on 
that  subject  is.  He  must  be  no  less  clearly  aware  in  what  respects 
he  is  not  content  with  it,  and  why.  He  must  further  have  formed 
a  clear  conception  of  the  changes  in  its  effect  which  he  desires  to 
produce.  Nor  is  it  enough  to  have  a  distinct  intention  founded 
on  exact  knowledge.  The  law-giver  must  also  have  the  skill  to 
express  that  intention  in  apt,  sufficient,  and  unambiguous  terms, 
which  shall  make  his  purpose  plainly  understood,  if  possible,  by 
those  who  have  to  obey  the  law,  but  in  any  case  by  those  who  have 
to  administer  it.  Parliamentary  legislation,  however,  is  carried  on, 
with  rare  exceptions,  under  circumstances  and  in  a  manner  which 
effectually  prevent  most  or  all  of  these  conditions  from  being 
satisfied.  The  difficulty  of  knowing  the  actual  state  of  the  law  is 
on  many  questions  considerable,  even  for  experts,  and  most  laymen 
do  not  so  much  as  know  how  great  the  difficulty  is.  Hence  well- 
meaning  and  otherwise  well-informed  men  often  bring  forward 
proposals  which  they  suppose  to  be  improvements  of  the  law,  and 
which  might  be  so  if  the  existing  law  were  such  as  they  suppose  it 
to  be,  but  which  in  truth  are  either  superfluous  or  inappropriate. 
It  is  likewise  a  common  state  of  mind,  even  among  educated  per- 
sons, to  have  a  sense  of  dissatisfaction  or  hardship  without  attempt- 
ing to  fix  in  one's  mind  the  real  point  where  things  are  amiss. 
And  this  vague  feeling  that  something  must  be  done,  somebody 
indemnified,  or  somebody  else  made  answerable,  is  a  constant  force 


14  THE   MECHANICS  OF  LAW  MAKING 

tending  to  unconsidered  legislation.  When  our  crudely  formed 
and  more  crudely  executed  intentions  fail  to  bear  fruit,  as  they 
naturally  do,  we  are  apt  to  think,  not  that  we  have  legislated  badly, 
but  that  we  have  not  legislated  .enough,  and  so  blunders  raise  up 
blunders,  and  the  stock  increases  and  multiplies.  Technical  skill, 
again,  is  often  below  the  mark,  if  not  altogether  wanting,  especially 
in  the  amendments  which  may  seriously  disfigure  the  most  artisti- 
cally drawn  bill.  In  fact,  the  more  artistic  the  original  composition 
is,  the  more  it  will  suffer  from  piecemeal  alterations.  The  kind 
of  skill  required  includes  many  elements.  First  comes  power  of 
expressing  ideas  clearly,  which  is  not  so  common  as  many  people 
think.  Familiarity  with  the ,  appropriate  technical  terms  is  of 
course  needful,  and  besides  this  there  should  be  knowledge  of  the 
manner  in  which  the  language  of  statutes  is  looked  at  by  those 
who  have  to  interpret  it.  There  must  yet  be  added  the  faculty 
of  scientific  imagination  which  can  foresee  the  various  consequences 
of  a  proposed  enactment  in  its  relations  to  the  various  persons  and 
transactions  affected  by  it.  We  shall  offer  no  insult  to  the  intel- 
ligence of  members  of  Parliament  in  saying  that  most  of  them  are 
without  these  special  qualifications.  Nor  is  there  any  expert  or 
set  of  experts  whose  business  is  to  guide  or  superintend  the  technical 
part  of  legislation.  The  result  is  that  Acts  and  clauses  are  passed 
to  which  it  is  all  but  impossible  to  attach  a  definite  meaning,  which 
produce  unexpected  and  absurd  consequences,  or  which,  being 
intended  to  settle  doubtful  points,  only  raise  up  new  doubts  in 
addition  to  the  old  ones.  Many  an  Act  of  Parliament,  originally 
prepared  with  the  greatest  care  and  skill,  and  introduced  under  the 
most  favourable  circumstances,  does  not  become  law  till  it  has  been 
made  a  thing  of  shreds  and  patches  hardly  recognisable  by  its 
author,  and  to  any  one  with  an  eye  for  the  clothing  of  ideas  in  comely 
words  no  less  ludicrous  an  object  than  the  ragged  pilgrims  described 
by  Bunyan:  "They  go  not  uprightly,  but  all  awry  with  their 
feet ;  one  shoe  goes  inward,  another  outward,  and  their  hosen  out 
behind ;  there  a  rag  and  there  a  rent,  to  the  disparagement  of  their 
Lord." 

Sir  F.  Pollock  illustrated  his  remarks  by  referring  to  the 
English  Partnership  Act  of  1865,  which,  after  having  been 


THE  LEGISLATURE  AND  THE  DRAFTSMAN       15 

steered  through  the  two  Houses  of  Parliament  by  such 
eminent  lawyers  as  Lord  Selborne  (then  Sir  Roundell  Palmer) 
and  Lord  Westbury,  was  pronounced  a  few  years  later  by  an 
eminent  judge  to  be  based  on  a  misunderstanding  of  a  judicial 
decision  and  to  leave  the  law  practically  as  it  stood  before. 

"The  singular  part  of  this  story,"  says  Sir  F.  Pollock,  "is  that 
the  misunderstanding  was  shared  by  the  law  officers  of  the  Crown, 
all  the  law  lords  (two  of  whom  had  been  parties  to  the  decision)  and, 
it  would  seem,  the  legal  profession  generally." 

The  amateur  or  lay  legislator,  the  legislator  who  does  not 
profess  to  be  a  lawyer,  will  probably  note  with  grim  satis- 
faction the  fallibility  of  distinguished  lawyers  on  the  question 
what  is  the  law  which  it  is  proposed  to  amend,  and  what 
will  be  the  effect  of  the  amendment  which  they  propose  as 
a  remedy.  But  the  moral  which  I  desire  to  draw  is,  not  that 
knowledge  of  the  law  is  useless  to  the  legislator,  but  that 
such  knowledge  is  sometimes  difficult,  it  may  be  unneces- 
sarily difficult,  to  acquire.  In  what  ways  its  acquisition  has 
been,  or  may  be,  made  easier,  is  one  of  the  subjects  on  which 
I  shall  have  to  touch. 

I  have  quoted  at  some  length  from  Sir  F.  Pollock's  essay, 
partly  because  I  wish  to  dissipate  any  erroneous  notion  that 
I  am  holding  up  English  statute  law  as  a  model  to  be  followed 
by  American  legislators  —  nothing  could  be  further  from 
my  mind  —  partly  because  I  cannot  improve  on  his  state- 
ment of  the  qualifications  required  for  a  legislator,  for  a  man 
who  takes  upon  himself  the  responsibility  of  introducing 
and  endeavouring  to  pass  a  new  law.  Let  me  summarise 
what  he  says.  The  legislator  should  know  the  law.  He 
should  know  the  facts.  He  should  know  exactly  what  he 
means  to  do.  He  should  know  how  to  express  his  meaning 
clearly.  And  if  the  legislator  should  know  these  things,  so 


16  THE  MECHANICS  OF  LAW  MAKING 

also  should  any  legislative  draftsman  whom  he  may  employ 
as  an  expert.  He  is  not  bound  to  employ  any  such  expert, 
though,  if  he  is  an  amateur  in  the  art  of  bill  drafting,  he 
would  probably  act  wisely  in  doing  so.  But  if  he  does,  let 
him  not  suppose  that  he  thereby  exonerates  himself  from 
the  labour  of  getting  up  the  subject  himself,  or  divests  him- 
self of  any  responsibility  for  his  proposals.  In  my  parlia- 
mentary experience  any  member  who  tried  to  rely  exclusively 
on  his  draftsman  for  knowledge  of  his  subject,  or  for  ex- 
planation of  what  was  meant  or  would  be  effected  by  his 
bill,  was  apt  to  fare  very  badly.  I  mention  this  point 
because  some  of  your  legislators  have  expressed  fears  lest 
the  employment  of  draftsmen  would  mean  the  transfer  of 
legislative  responsibility  to  experts.  In  my  judgment  there 
is  no  foundation  for  any  such  fear. 

What  kind  and  amount  of  knowledge  is  required?  Of 
course,  law  is  an  admirable  science,  and  the  more  a  man  knows 
of  it  the  better.  But  you  can  be  a  good  legislator  and  a 
good  draftsman  without  being  a  profound  lawyer,  or  even 
an  all-round  lawyer.  You  should  have  some  familiarity 
with  the  general  principles  of  law  and  legislation.  For 
instance,  take  one  of  the  first  questions  which  he  who  takes 
upon  himself  the  responsibility  of  proposing  a  new  law  often 
has  to  ask  himself.  Assuming  that  the  existing  law  does 
not  meet  the  case,  is  there  really  a  sufficient  case  for  a  new 
law?  Cannot  the  matter  be  left,  would  it  not  be  more 
safely  and  properly  left,  to  the  action  of  public  opinion,  or 
of  those  other  extra-legal  sanctions  by  which  the  greater 
part  of  human  conduct  is  regulated?  The  question  will 
often  be  answered  in  accordance  with  personal  proclivities 
either  towards  individualism  on  the  one  side,  or  State  action 
—  I  will  not  call  it  socialism  —  on  the  other.  But  it  has 


THE  LEGISLATURE  AND  THE  DRAFTSMAN       17 

to  be  present  to  the  mind  of  every  legislator,  and  the  answer 
to  it  is  to  be  found  in  the  experience  derived  from  the  actual 
working  of  other  laws  and  institutions,  with  due  allowance 
for  differences  arising  out  of  national  character,  social  and 
economic  conditions,  and  so  forth. 

Knowledge  of  this  kind  ought  to  be  part  of  the  general 
equipment  of  a  legislator.  What  special  knowledge  of  law 
is  required  for  particular  cases  of  legislation  ?  If  the  object 
is  to  alter  a  particular  rule  of  law,  such  as  the  rule  of  partner- 
ship law  to  which  Sir  F.  Pollock  referred,  of  course  you  must 
know  precisely  what  the  rule  is,  its  history,  its  development, 
its  application,  the  cases  decided  upon  it.  But  so  far  as  my 
experience  goes,  the  great  majority  of  Acts  of  Parliament, 
and  I  presume  of  United  States  laws  also,  are  not  concerned, 
except  incidentally,  with  what  I  have  called  elsewhere 
lawyers'  law.  If  you  analyse  the  contents  of  the  British 
statute  book  —  I  mean  the  public  general  statutes,  not  the 
measures  which  in  our  country  fall  within  the  domain  of 
private  bill  legislation,  the  grant  of  what  you  would  call 
franchises  and  so  forth  —  if  you  analyse  our  collection  of 
public  general  Acts,  you  will  find  that  the  proportion  of 
enactments  which  alter  rules  or  principles  of  the  common  law 
is  very  small,  and  that  the  object  of  by  far  the  greater  part 
of  them  is  to  make  some  alteration  in  the  administrative 
machinery  of  the  country. 

Some  improvement  of  administrative  machinery  is  sug- 
gested, and  among  the  questions  which  the  framer  of  the  pro- 
posed measure  has  to  consider  are  these:  What  powers 
and  duties  already  exist  for  the  purpose  contemplated? 
By  whom  are  they  exercised  and  performed?  What  is 
the  appropriate  central  authority?  What  is  the  appro- 
priate local  authority?  What  should  be  the  relations  be- 


18  THE  MECHANICS  OF  LAW  MAKING 

tween  them?  What  kind  or  degree  of  interference  with 
public  or  private  rights,  either  by  the  courts  or  by  the 
central  authority,  will  be  tolerated  by  public  opinion? 
How  is  the  money  to  be  found?  How  is  the  change  to  be 
introduced  so  as  to  cause  the  least  interference  with  existing 
rights  and  interests,  the  least  friction  with  existing  machinery  ? 
And  last,  but  not  least,  what  provisions  of  the  numerous 
Acts  of  Parliament  bearing  on  the  subject  are  to  be  applied, 
superseded,  or  borne  in  mind?  These  are  questions  which 
a  practising  lawyer  does  not  often  have  to  consider,  but  which, 
at  least  in  England,  arise  in  the  preparation  of  almost  every 
public  legislative  measure.  Many  of  them  are  questions 
rather  for  the  legislator  than  for  the  draftsman.  But  they 
are  questions  on  which  the  draftsman  is  often  expected  to 
advise,  and  on  which  the  knowledge  he  has  acquired  often 
enables  him  to  give  useful  advice.  With  the  provisions  of 
the  statute  law  bearing  on  the  subject,  he  is  always  expected 
to  be  familiar,  and  one  of  his  most  difficult  tasks  in  the 
preliminary  work  which  has  to  be  gone  through  before  a  bill 
is  drawn,  is  that  of  threading  his  way  through  what  is  often 
a  jungle  of  legislative  enactments. 

It  is  his  duty  to  master  and  understand  the  complicated 
provisions  of  the  existing  statute  law  relating  to  the  matter 
in  hand,  to  know  how  they  have  been  construed  in  practice, 
and  what  construction  has  been  placed  upon  them  by  courts 
of  law,  to  point  out  what  obscurities,  ambiguities,  incon- 
sistencies, or  other  defects  they  present,  and  to  indicate  in 
what  cases  and  in  what  manner  these  defects  may  most 
suitably  be  removed  by  fresh  legislation.  But  he  must  not 
expect  that  his  advice  on  these  points  will  always  be  followed. 
There  are  often  good  reasons,  political  or  tactical,  sometimes 
more  easily  appreciated  by  the  politician  than  by  the  lawyer, 


THE  LEGISLATURE  AND  THE  DRAFTSMAN       19 

but  in  many  cases  very  sound  and  cogent,  against  the  adop- 
tion of  counsels  of  perfection  urged,  and  properly  urged,  by 
the  draftsman  from  the  legal  point  of  view. 

Let  me  give  you  an  illustration  from  my  own  experiences 
as  a  draftsman.  A  good  many  years  ago  I  drew  a  bill  which 
became  law  as  the  Municipal  Corporations  Act,  1882.  It 
is  a  piece  of  work  to  which,  after  the  lapse  of  more  than 
forty  years,  I  look  back  with  some  satisfaction.  I  could 
not  have  accomplished  it  if  I  had  not  been  working  with  the 
advice  and  assistance  of  one  of  the  most  careful  and  skilful 
draftsmen  of  that  day,  the  late  Sir  Francis  Reilly.  It  con- 
solidated nearly  80  Acts,  and  reproduced  the  law  in  what  I 
believe  to  have  been  found  to  be  a  convenient  and  intelligible 
form.  Now  the  work  of  consolidating  statutes  involves 
a  great  deal  more  than  the  use  of  scissors  and  paste.  There 
are  always  gaps  to  be  filled,  obscurities  to  be  removed,  in- 
consistencies to  be  harmonised,  and  doubts  to  be  resolved. 
When  questions  of  this  kind  arise,  the  draftsman  cannot  take 
upon  himself  the  responsibility  of  deciding  them,  though  he 
may  have  and  express  an  opinion  as  to  the  best  mode  of 
dealing  with  them.  But  the  decision  of  these  questions 
involves  the  exercise  of  legislative  discretion,  and  the  re- 
sponsibility for  deciding  them  in  the  most  judicious  way  must 
rest  with  the  minister  or  other  member  who  takes  charge 
of  the  bill.  The  duty  of  the  draftsman  is  to  point  out  clearly 
the  doubts  and  difficulties  so  that  there  may  be  no  risk  of 
their  being  overlooked. 

Now  I  had  studied  with  much  care  the  numerous  judicial 
decisions  on  the  several  Municipal  Corporations  Acts  which 
the  consolidation  bill,  was  to  supersede,  and  had  written 
notes  upon  them.  Amongst  other  things  I  noted  that  there 
seemed  to  be  room  for  some  doubt  as  to  whether  women 


20  THE  MECHANICS  OF  LAW  MAKING 

were  or  were  not  eligible  to  seats  on  municipal  councils  and 
that,  though  I  thought  that  according  to  the  best  con- 
struction they  were  not,  perhaps  the  doubt  ought  to  be  re- 
moved. However,  the  minister  who  took  charge  of  the  bill 
told  me  that  he  was  himself  in  favour  of  giving  women  seats 
on  these  councils,  and  that  if  that  right  was  open  to  doubt 
under  the  existing  law,  he  would,  in  reproducing  the  law, 
give  them,  or  leave  them,  the  benefit  of  the  doubt.  So  it 
was  resolved  to  'consolidate  the  doubt/  as  draftsmen  some- 
times call  it ;  in  other  words,  to  leave  the  law  neither  more 
nor  less  clear  than  it  had  previously  been.  This  happened 
just  before  I  left  England  for  India,  and  the  bill  became  law 
during  my  absence.  Soon  after  my  return  I  had,  in  the 
capacity  of  assistant  parliamentary  counsel  to  the  Treasury, 
the  post  which  I  then  held,  to  take  part  in  preparing  another 
bill,  which  became  law  as  the  Local  Government  Act  of  1888. 
The  problem  with  which  that  measure  had  to  deal  was  one 
of  exceptional  complexity  and  difficulty.  The  main  objects 
aimed  at  were :  first,  to  set  up  new  elective  bodies  for  counties, 
and  secondly,  to  transfer  to  these  bodies  certain  admin- 
istrative functions  exercised  by  other  authorities,  including 
justices  of  the  peace.  And  the  method  adopted  in  framing 
the  bill  was  the  method  of  legislation  by  reference,  a  method 
which  is  frequently  denounced,  and  which  often  deserves 
the  denunciations  hurled  against  it,  but  for  the  adoption 
of  which  there  was,  I  think,  a  pretty  strong  case  in  this 
particular  instance.  As  to  the  constitution  and  election 
of  the  new  bodies  to  be  set  up,  the  leading  notion  was  to 
make  them  resemble  as  nearly  as  possible  the  councils  of 
municipal  boroughs.  Now  the  law  relating  to  the  consti- 
tution and  election  of  municipal  councils  had  recently  been 
reduced  into  a  fairly  compact  and  intelligible  form  by  the 


THE  LEGISLATURE  AND  THE  DRAFTSMAN      21 

passing  of  the  consolidation  Act  to  which  I  have  referred. 
A  large  number  of  persons  throughout  the  country  were 
familiar  both  with  the  contents  and  with  the  practical  work- 
ing of  this  law.  In  these  circumstances  the  plan  adopted 
was  to  enact  that  the  municipal  law  should  apply  to  county 
councils  subject  to  certain  modifications.  This  method  of 
legislation  possessed  considerable  advantages,  both  from 
the  parliamentary  and  from  the  administrative  point  of 
view.  It  presented  to  Parliament  a  single  issue;  namely, 
whether  the  municipal  system  should  be  adopted  or  not. 
If  the  municipal  provisions  had  been  repeated  in  the  new 
bill,  they  would  have  run  to  an  inordinate  length,  every 
detail  of  them  would  have  been  open  to  discussion  and  amend- 
ment, and  the  result  of  the  discussion  would  probably  have 
been  to  introduce  a  large  amount  of  variation,  both  in 
language  and  in  substance,  between  the  law  applicable  to 
borough  councils  and  the  law  applicable  to  county  councils, 
and  thus  to  destroy  that  uniformity  of  law  and  procedure 
which  so  materially  facilitates  administration.  For  these 
reasons,  be  they  good  or  bad,  the  provisions  of  the  Municipal 
Corporations  Act  of  1882  were  incorporated  or  applied  by 
reference  in  the  Local  Government  Bill  of  1888. 

It  was  my  duty  to  point  out,  and  I  did  point  out,  the  doubt 
about  women's  rights  to  be  elected.  But  the  minister  in 
charge  of  the  bill  replied,  as  ministers  often  do,  that  this 
was  a  question  which  might  be  left  to  stand  over  until  the 
bill  reached  the  committee  stage.  The  clause  raising  the 
doubt  was  not  reached  in  committee  until  July.  It  was,  if 
I  remember  rightly,  a  very  hot  July.  Members  were  weary, 
and  anxious  to  get  away  into  the  country.  The  bill  had  been 
introduced  by  a  conservative  government,  but  was  not  very 
popular  with  the  conservative  party.  They  did  not  regard 


22  THE  MECHANICS  OF  LAW  MAKING 

with  much  favour  the  transfer  of  power  from  justices  of  the 
peace  to  elective  councils.  The  measure  was  looked  on  with 
more  favour  by  the  opposition,  and  the  minister  in  charge 
of  the  bill  was  warned  by  his  whips  that  if  its  progress  should 
be  retarded  by  any  serious  obstacle,  there  was  a  serious 
risk  of  its  being  wrecked.  He  was  also  advised  that  any 
amendment  raising  a  question  of  women's  rights  would 
mean  a  three  days'  debate.  The  result  was  an  informal  con- 
ference behind  the  Speaker's  chair  between  representatives 
of  the  front  government  bench  and  representatives  of  the 
front  opposition  bench.  It  was  arranged  that  if  the  govern- 
ment did  not  raise  the  question,  the  opposition  front  bench 
would  not,  and  it  might  be  hoped  that  no  one  else  would 
discover  or  raise  the  point.  Nobody  else  did,  and  so  the  Act 
became  law  with  the  doubt  unresolved. 

But  in  the  very  next  year  the  question  as  to  the  eligibility 
of  women  to  the  London  County  Council  was  raised  in  the 
courts  of  law,1  and,  after  much  argument  and  long  debate, 
was  decided  against  the  women.  Much  was  said  by 
journalists  and  by  the  public  about  the  carelessness  and 
slovenliness  of  the  draftsman  who  had  left  such  an  important 
point  open  to  doubt.  But  I  am  bound  to  say  that  no  similar 
language  was  used  by  the  learned  judges  who  decided  the 
case.  Our  judges  sometimes  speak  severely  about  the 
language  of  Acts  of  Parliament,  and  do  not  always  make 
sufficient  allowance  for  the  difficulties  which  the  draftsmen 
of  statutes  have  to  encounter.  But  in  this  case  their  utter- 
ances contained  nothing  to  which  a  susceptible  draftsman 
could  take  exception.  How  far  any  blame  attached  to  the 
draftsman  in  this  particular  case,  you  are  in  a  position  to 
judge  from  what  I  have  told  you.  Whether  the  minister 

1  See  Beresford-Hope  v.  Lady  Sandhurst,  23  Q.B.D.  79,  May  16,  1889. 


THE  LEGISLATURE  AND  THE  DRAFTSMAN       23 

who  had  to  decide  between  the  risk  of  losing  his  bill  and  the 
responsibility  for  leaving  the  law  obscure  adopted  the  right 
course  is  a  nice  question  of  political  ethics.  His  dilemma 
might  perhaps  suggest  to  students  of  fiction  the  dilemma  of 
Mr.  Frank  Stockton's  hero  in  his  amusing  story  of  The  Lady 
or  the  Tiger. 


II 

THE  REFORM  OF  THE  ENGLISH  STATUTE  BOOK 

I  REFERRED  in  the  preceding  chapter  to  the  difficulties 
experienced  by  English  legislators  and  draftsmen  in  thread- 
ing their  way  through  the  mazes  of  the  English  statute  law. 
It  is  probable  that  your  legislators  and  draftsmen  have  to 
encounter  similar  difficulties.  Perhaps,  therefore,  it  may 
be  worth  while  to  tell  you  something  about  the  steps  which 
we  have  taken  in  England,  with  more  or  less  success,  to  make 
our  statute  law  more  accessible,  more  intelligible,  a  little 
easier  to  explore. 

There  are  two  main  questions  which  I  shall  ask  you  to 
consider :  — 

1.  What  attempts  have  been  made  in  England  to  improve 
the  form  of  our  statute  book,  of  our  general  body  of  statute 
law,  how  far   have  those  attempts  been   carried,  and  how 
far  have  they  been  successful? 

2.  What  attempts  have  been  made  to  improve  the  form 
of  our  current  legislation,  and  what  measure  of  success  have 
they  obtained  ? 

In  order  to  answer  the  first  of  these  questions,  I  must  "make 
a  short  excursion  into  history.  But  my  retrospect  must  be 
brief,  for  I  am  merely  summarising  what  I  have  described 
at  greater  length  elsewhere.1 

The  condition  of  the  English  statute  book  engaged  the 
attention  of  the  Crown  and  of  the  legislature  at  an  early 
date  of  English  parliamentary  history.  I  will  go  as  far  back 

1  Legislative  Methods  and  Forms.    Oxford.  1901. 
24 


REFORM  OF  THE  ENGLISH  STATUTE  BOOK      25 

as  the  year  1551.  In  that  year  King  Edward  VI,  then  a 
boy  of  fourteen,  and  a  very  precocious  youth,  wrote  as 
follows  in  his  Discourse  on  the  Reformation  of  Abuses: 
"  I  have  shewed  my  opinion  heretofore  what  statutes  I  think 
most  necessary  to  be  enacted  this  session.  Nevertheless, 
I  would  wish  that  beside  them  hereafter,  when  time  shall 
serve,  the  superfluous  and  tedious  statutes  were  brought 
into  one  sum  together,  and  made  more  plain  and  short,  to 
the  intent  that  men  might  better  understand  them;  which 
thing  shall  much  help  to  advance  the  profit  of  the  Common- 
wealth." "But  this,"  observes  Bishop  Burnet,  "was  too 
great  a  design  to  be  set  on  foot  or  finished  under  an  infant 
king." 

Now  let  me  pass  on  to  the  reign  of  Queen  Elizabeth. 
During  her  reign  Sir  Nicholas  Bacon  (father  of  the  great 
Francis  Bacon),  when  Lord  Keeper,  drew  up  a  scheme  for 
reducing,  ordering,  and  printing  the  statutes  of  the  realm. 
The  heads  were  as  follows :  "  First,  where  many  lawes  be 
made  for  one  thing,  the  same  are  to  be  reduced  and  established 
into  one  lawe,  and  the  former  to  be  abrogated.  Item,  where 
there  is  but  one  lawe  for  one  thing,  that  these  are  to  remain 
in  case  as  they  be.  Item,  that  all  the  Acts  be  digested  into 
titles  and  printed  according  to  the  abridgement  of  the 
statutes.  Item,  where  one  part  of  one  Acte  standeth  in  force 
and  another  part  abrogated,  there  shall  be  no  more  printed, 
but  that  that  standeth  in  force.  The  doeing  of  thse  things 
maie  be  committed  to  the  persons  hereunder  written,  if  it 
shall  so  please  Her  Majestie  and  Her  Counsell,  and  daye 
wolde  be  given  to  the  committees  until  the  first  daie  of 
Michlemass  Terme  next  coming  for  the  doing  of  this,  and 
then  they  are  to  declare  their  doings,  to  be  considered  by 
such  persons  as  it  shall  please  Her  Majestie  to  appoint." 


26  THE  MECHANICS  OF  LAW  MAKING 

King  James  I,  in  a  speech  from  the  throne  (1609),  spoke 
of  "  divers  cross  and  cuffing  statutes,  and  some  so  penned 
that  they  may  be  taken  in  divers,  yea,  contrary  senses"; 
adding  "and  therefore  would  I  wish  both  these  statutes 
and  reports,  as  well  in  the  Parliament  as  common  law,  to 
be  once  maturely  reviewed  and  reconciled ;  and  that  not  only 
all  contrarieties  should  be  scraped  out  of  our  bookes,  but 
even  that  such  penal  statutes  as  were  made  but  for  the  use 
of  the  time  (from  breach  whereof  no  man  can  be  free)  which 
do  not  now  agree  with  the  condition  of  this  our  time,  might 
likewise  be  left  out  of  our  bookes,  which  under  a  tyrannous 
or  avaricious  king  could  not  be  endured.  And  this  reforma- 
tion might  (me  thinkes)  bee  made  a  worthy  worke,  and  well 
deserves  a  Parliament  to  be  set  of  purpose  for  it."  A  com- 
mission was  appointed  in  the  following  year,  and  a  MS. 
in  the  British  Museum  is  probably  the  fruit  of  its  labours.1 
It  contains  a  list  of  the  statutes  from  3  Edw.  I  to  2  Jas.  I 
which  had  been  repealed  or  had  expired,  and  suggestions  for 
further  repeals  and  changes. 

In  1616  Sir  Francis  Bacon,  then  Attorney-general  to 
King  James  the  First,  submitted  to  the  King  a  proposition 
"  touching  the  compiling  and  amendment  of  the  laws  of 
England." 

"  The  work  to  be  done,"  according  to  this  proposition, 
"  consisteth  of  two  parts,  the  digest  or  recompiling  of  the 
common  laws,  and  that  of  the  statutes. 

"For  the  reforming  and  recompiling  of  the  statute  law, 
it  consisteth  of  four  parts. 

"  1.  The  Government  to  discharge  the  books  of  those 
statutes  whereas"  (#w.  wherein)  " the  case  by  alteration  of 
time  is  vanished,  as  Lombards,  Jews,  Gauls,  halfpence  &c. 

1  MS.  Harl.  244. 


REFORM  OF  THE  ENGLISH  STATUTE  BOOK      27 

Those  may,  nevertheless,  remain  in  the  libraries  for  anti- 
quities, but  no  reprinting  of  them.  The  like  of  statutes 
long  since  expired  and  clearly  repealed ;  for  if  the  repeal  be 
doubtful,  it  must  be  so  propounded  by  Parliament. 

"  2.  The  next  is  to  repeal  all  statutes  which  are  sleeping 
and  not  of  use,  but  yet  snaring  and  in  force.  In  some  of 
those  it  will  perhaps  be  requisite  to  substitute  some  more 
reasonable  law  instead  of  them,  agreeable  to  the  time;  in 
others  a  simple  repeal  may  suffice. 

"  3.  The  third,  that  the  grievousness  of  the  penalty  in 
many  statutes  may  be  mitigated,  though  the  ordinance  stand. 

"  4.  The  last  is  the  reducing  of  convenient  statutes  heaped 
one  upon  another  to  one  clear  and  uniform  law. 

"  Of  the  last  part,"  he  said,  "much  had  been  done  by  Lord 
Hobart  himself,  Serjeant  Finch,  Heneage  Finch,  Noye, 
Hackwell,  and  others.  The  best  way  to  carry  out  the  work 
would  be  to  have  commissioners  appointed  by  the  two 
Houses." 

In  the  time  of  the  Commonwealth  two  committees,  which 
included  such  distinguished  men  as  Bulstrode  Whitelocke, 
Sir  Matthew  Hale,  and  Ashley  Cooper  (afterwards  the  great 
Lord  Shaftesbury),  were  appointed  with  instructions "  to 
revise  all  former  statutes  and  ordinances  now  in  force,  and 
consider,  as  well,  which  are  fit  to  be  continued,  altered,  or 
repealed,  as  how  the  same  may  be  reduced  into  a  compendious 
way  and  exact  method  for  the  more  ease  and  clearer  under- 
standing of  the  people."  But  no  tangible  results  appear  to 
have  been  achieved. 

After  the  Restoration,  the  subject  was  again  inquired 
into  by  Lord  Nottingham  and  others,  but  nothing  was  done, 
and  the  question  appears  to  have  slumbered  until  the  end 
of  the  eighteenth  century. 


28  THE  MECHANICS  OF  LAW  MAKING 

England  underwent  great  changes  in  the  eighteenth 
century.  Walpole  and  his  successors  built  up  that  half  un- 
consciously designed  but  subtly  framed  system  of  govern- 
ment to  which  Walter  Bagehot  has  given  the  name  of  the 
Cabinet  system.  Wesley  revitalised  religious  life.  The 
industrial  revolution  radically  altered  the  economic  features 
of  English  society.  Lord  Mansfield,  with  the  help  of  his 
special  juries,  systematised  and  gave  form  to  the  rules  of 
English  commercial  law.  But  the  eighteenth  century, 
though  it  gave  birth  to  your  constitution,  was  not  an  age 
of  great  legislation  in  England.  It  was,  with  very  few 
exceptions,  not  marked  by  any  statutes  of  great  legal  or 
constitutional  importance.  Many  things  slumbered  in 
Parliament,  and  among  them  projects  for  improving  the 
English  statute  book. 

It  was  not  until  near  the  end  of  the  century  that  interest 
in  the  subject  was  revived.  In  1796  two  reports,  presented 
by  committees  of  the  House  of  Commons,  called  attention 
to  the  unsatisfactory  condition  of  the  statute  book,  and  led 
to  an  improvement  in  the  classification  of  statutes,  and  to  the 
distinction  now  recognised  by  us  between  public  general 
Acts,  local  and  personal  Acts,  and  private  Acts.  On  this 
distinction  I  shall  have  to  touch  later  on. 

The  Parliament  of  1800  (the  Parliament  which  passed 
the  union  with  Ireland)  passed  resolutions  which  led  to 
the  appointment  of  the  First  Commission  on  Public  Records, 
and  it  was  under  the  authority  of  this  Commission  that  was 
prepared  the  edition  of  the  statutes  known  as  the  "  Statutes 
of  the  Realm."  This  edition,  in  nine  great  folio  volumes, 
is  the  most  authoritative  edition  of  the  English  statutes 
down  to  the  end  of  the  reign  of  Queen  Anne,  and  the  elaborate 
introduction  to  it,  though  its  learning  is  now  a  little  out  of 


REFORM  OF  THE  ENGLISH  STATUTE  BOOK     29 

date,  contains  a  mass  of  interesting  information  on  the 
history  and  condition  of  the  English  statute  law. 

In  the  'twenties'  of  the  last  century  Sir  Robert  Peel 
did  a  good  deal  towards  improving  both  the  form  and  the 
substance  of  the  English  statutory  criminal  law. 

Then  came  the  Reform  Act  of  1832,  and  the  influence  of 
Jeremy  Bentham,  perhaps  the  greatest  of  law  reformers,  at 
once  made  itself  felt  in  the  reformed  parliament. 

In  1833,  when  Lord  Brougham  was  Lord  Chancellor,  a 
royal  commission  was  appointed  with  instructions  :  — 

(1)  To  digest  into  one  statute  all  the  statutes  and  enact- 
ments touching  crimes  and  the  trial  and  punishment  thereof, 
and  also  to  digest  into  one  other  statute  all  the  provisions 
of  the  common  or  unwritten  law  touching  the  same ; 

(2)  To  inquire  and  report  how  far  it  might  be  expedient 
to  combine  those  statutes  into  one  body  of  the  criminal 
law;  and 

(3)  Generally  to  inquire  and  report  how  far  it  might  be 
expedient  to  consolidate  the  other  branches  of  the  existing 
law  of  England. 

John  Austin,  the  well-known  writer  on  jurisprudence,  was 
appointed  a  member  of  the  Commission.  But  he  did  not 
find  the  work  congenial,  and  he  soon  resigned.  The  Com- 
mission presented  seven  reports,  and  were  engaged  on  the 
eighth  when  they  were  dissolved  in  1845. 

They  were  succeeded  by  another  commission  which  was 
appointed  in  1845  and  made  seven  reports,  the  last  of  which 
appeared  in  1849.  Then  came  Lord  Cranworth's  Board  for 
the  revision  of  the  statute  law,  a  Board  which  was  constituted 
in  the  first  instance  as  a  temporary  and  experimental  body, 
and  which,  after  making  three  reports,  was  superseded  by 
a  Statute  Law  Commission  of  1854,  consisting  of  Lord 


30  THE  MECHANICS  OF  LAW  MAKING 

Cranworth  himself  and  some  of  the  most  distinguished 
lawyers  of  the  time. 

I  will  not  weary  you  with  the  details  of  the  work  done 
by  these  Commissions  and  this  Board.  Their  reports  are 
full  of  learning,  and  contain  many  valuable  suggestions,  some 
of  which  have  borne  useful  fruit.  But  in  course  of  time  con- 
siderable dissatisfaction  was  expressed,  both  in  Parliament 
and  in  public,  with  the  nature  of  their  work,  and  with  their 
rate  of  progress.  It  was  complained  that  they  wrote  too 
much,  cost  too  much,  and  did  too  little  or,  at  all  events,  that 
the  tangible  results  of  their  work  were  very  small.  And  so 
they  came  to  an  end. 

The  truth  appears  to  be  that  these  learned  bodies  were 
too  ambitious;  they  aimed  at  too  many  things;  they  did 
not  realise  how  little  it  was  humanly  possible  to  achieve 
within  a  limited  time;  they  did  not  form  a  sufficiently 
clear  conception  of  the  mode  in  which,  and  the  machinery 
by  which,  the  several  branches  of  the  work  proposed  by  them 
should  be  carried  out,  or  of  the  relative  importance  and 
urgency  of  those  branches.  But,  as  I  have  said,  the  labours 
of  the  Commissions  were  not  unfruitful.  It  gradually  be- 
came clear,  and  largely  through  their  inquiries  and  recom- 
mendations, that  there  were  several  distinct,  but  related, 
lines  along  which  the  work  of  improving  the  form  of  the 
law  should  be  carried  out,  that  the  work  to  be  performed  on 
each  of  these  lines  would  be  difficult  and  laborious,  would 
require  patient,  plodding,  unobtrusive  labour,  would  take 
much  time,  and  ought  not  to  be  scamped. 

These  different  lines  or  branches  of  work  may  be  described 
under  five  heads :  1.  Indexing,  2.  Expurgation,  3.  Revision, 
4.  Consolidation  of  Statute  Law,  and  5.  Codification.  This 
last  branch  of  work,  codification,  stood  in  a  different  category 


REFORM  OF  THE  ENGLISH  STATUTE^  BOOK      31 

from  the  others,  as  being,  if  desirable,  rather  an  ideal  to  be 
aimed  at  than  a  programme  likely  to  be  realised,  at  all  events, 
in  the  near  future.  I  say,  "if  desirable,"  because  there 
were  and  are  lawyers  of  great  eminence  who  consider  codi- 
fication of  the  common  law,  at  least  on  any  large  or  com- 
prehensive scale,  not  only  impracticable,  but  inexpedient. 
But  as  to  the  practicability  and  expediency  of  the  other 
branches  of  work,  those  branches  which  are  more  directly 
concerned  with  statute  law,  there  was  not,  and  is  not,  any 
substantial  difference  of  opinion. 

Then,  first,  of  indexing.  Let  no  one  despise,  I  hope  no 
one  does  despise,  the  work  of  the  indexer,  drudgery  though 
it  is.  It  often  does  for  us  what  was  done  for  the  world  by 
those  obscure  but  indefatigable  grammarians  of  the  latter 
middle  ages  of  whom  one  has  been  immortalised  by  Robert 
Browning.  Every  reader  knows  that  a  good  index  is  one 
of  the  best  labour-saving  appliances  that  can  be  found.  The 
work  of  registering  and  then  of  indexing  the  vast  tangled  mass 
of  English  statutes  occupied  several  generations  of  industrious 
workers,  performing  their  laborious  work  under  the  super- 
vision of  successive  commissions  and  committees.  And  it 
is  to  their  labour  that  is  due  the  very  complete  chronological 
table  and  index  of  the  statutes  which  is  now  published  an- 
nually under  the  direction  of  our  Statute  Law  Committee. 
I  have  said  table  and  index,  for  the  work  consists  of  two 
parts.  The  first  part  is  a  chronological  table  of  all  public 
general  statutes  since  the  beginning  of  the  parliamentary 
period,  showing  which  have  been  repealed  in  whole  or  in  part. 
The  second  part  is  an  alphabetical  index  to  the  contents  of 
the  statute  book,  arranged  according  to  subjects. 

Concurrently  with  this  work  of  registering  and  indexing, 
and  to  some  extent  by  the  same  staff,  has  been  carried  on 


32  THE  MECHANICS  OF  LAW  MAKING 

the  work  which  I  have  described  as  expurgation.  This  has 
been  effected  by  a  series  of  Acts  known  as  Statute  Law 
Revision  Acts.  There  have  been  about  thirty-six  of  these 
Acts.  The  first  of  them  was  passed  in  1861,  the  latest  as 
recently  as  1908,  for  the  work  requires  to  be  supplemented 
as  legislation  advances.  But  the  most  notable  of  them  all, 
and  that  which  has  been  taken  as  a  model  for  subsequent 
Acts  of  the  same  kind,  was  the  Statute  Law  Revision  Act 
of  1863,  which  was  introduced  by  Lord  Westbury  in  a  re- 
markable speech  reviewing  the  history  of  previous  attempts 
for  the  improvement  of  the  statute  law,  and  explaining  the 
principles  on  which  his  measure  was  founded.  "  What  he 
proposed,"  he  said,  "  was  that  the  statute  book  should  be 
revised  and  expurgated  —  weeding  away  all  those  enact- 
ments that  are  no  longer  in  force,  and  arranging  and  classify- 
ing what  is  left  under  proper  heads,  bringing  the  dispersed 
statutes  together,  eliminating  jarring  and  discordant  pro- 
visions, and  thus  getting  a  harmonious  whole  instead  of 
a  chaos  of  inconsistent  and  contradictory  enactments." 
He  explained  that,  with  this  object,  the  whole  of  the  statute 
roll  from  20  Edw.  II  down  to  nearly  the  end  of  the 
eighteenth  century  had  been  examined  and  revised.  "  The 
statutes  that  were  weeded  out  might,"  he  said,  "  be  described 
as  those  which  are  no  longer  applicable  to  the  modern  state 
of  society,  enactments  which  have  become  wholly  obsolete, 
enactments  which  have  been  repealed  by  obscure  or  indirect 
processes,  but  which  until  extirpated  from  the  statute  book 
would  be  constantly  the  cause  of  uncertainty.  An  endeavour 
had  been  made  to  apply  a  remedy  to  this  state  of  things. 
The  task  was  one  of  great  difficulty  and  delicacy.  The 
reason  for  every  alteration  would  be  found  in  the  schedule 
given  opposite  to  the  description  of  the  enactment  to  which 


REFORM  OF  THE  ENGLISH  STATUTE  BOOK   33 

it  had  been  applied.  This  had  been  done  in  order  that  the 
work  might  be  accomplished  with  something  like  that  cer- 
tainty and  assurance  of  safety  with  which  works  of  the  kind 
ought  always  to  be  accompanied.  When  the  statute  book 
had  been  cleared  of  superfluous  and  unnecessary  matter  by 
the  process  which  he  described,  he  hoped  to  prepare  a  digest 
of  the  whole  law,  both  common  and  statute." 

All  I  need  say  about  this  projected  digest  is  that  a  royal 
commission  was  appointed  to  consider  its  feasibility  and  that 
some  specimen  digests  were  prepared,  but  the  specimens 
were  not  considered  satisfactory,  and  the  project,  which 
was  probably  too  ambitious  for  its  time,  was  silently  dropped. 
What,  however,  has  been  steadily  carried  on  is  the  more 
modest  work  of  clearing  the  statute  book  by  means  of  statute 
law  revision  bills. 

The  task  of  preparing  these  statute  law  revision  bills  is, 
as  Lord  Westbury  observed,  one  of  great  delicacy.  Its 
performance,  especially  in  relation  to  old  enactments,  re- 
quires much  knowledge  of  antiquated  law  and  procedure, 
much  knowledge  also  of  the  circumstances  of  the  time  when 
the  laws  dealt  with  were  passed,  and  of  the  objects  which  the 
legislature  had  in  view  in  passing  them.  I  speak  with  some 
experience  on  this  subject,  because,  in  conjunction  with  a 
friend  of  mine,  I  prepared  the  bills  which  repealed  the  enact- 
ments superseded  by  our  Judicature  Acts  in  the  early  seventies, 
and  because  I  have  been  responsible  for  examining  and  check- 
ing the  accuracy  of  several  other  statute  law  revision  bills. 

Under  the  rules  laid  down  for  the  guidance  of  the  drafts- 
men of  these  measures,  specific  reasons  must  be  given  to 
justify  each  separate  repeal,  and  these  reasons  are  stated 
in  a  column  which  is  attached  to  the  schedule  of  repeals 
during  the  passage  of  the  measure  through  Parliament,  but 


34  THE  MECHANICS  OF  LAW  MAKING 

is  struck  out  when  it  becomes  law.  The  reasons  must  be 
specific,  and  general  terms  must  be  avoided.  For  instance, 
the  term  'obsolete'  is  avoided,  because  under  English  law 
a  statute  is  not,  though  under  Scottish  law  it  may  be,  ab- 
rogated by  disuse.  One  has  to  pick  one's  way  very  gingerly, 
because  great  masses  of  case  law  have  been  built  up  on 
the  language  of  particular  enactments,  and  one  runs  the 
risk  of  sapping  the  foundations  of  some  important  legal 
principle.  There  are  still  on  our  statute  book,  even  in  its 
revised  form,  pages  and  pages  of  enactments  —  Statutes  of 
Provisors  and  the  like  —  intended  to  restrict  or  destroy  the 
powers  of  the  Pope  within  our  island,  enactments  which 
we  have  been  afraid  to  touch  lest  we  should  bring  down  upon 
our  head  the  anathemas  of  ecclesiastical  lawyers.  The 
difficulties  have  been  great,  the  risks  have  been  serious,  but 
the  revisers  have  done  their  work  very  carefully  and  cau- 
tiously, and  very  few  slips  have  been  discovered. 

The  task  of  expurgating  the  statute  law  was  followed  by 
the  task  of  editing  it  in  a  revised  form,  omitting  all  the 
matter  cleared  away  by  repeal.  The  result  of  this  task 
is  to  be  found  in  the  edition  called  the  Statutes  Revised. 
Two  editions  of  the  English  Statutes  Revised  have  been 
published  by  the  authority  of  the  State.  The  second  con- 
sists of  twenty  octavo  volumes,  which  were  first  brought 
down  to  the  end  of  the  year  1878,  and  have  since  been 
brought  down  to  the  end  of  the  year  1900,  so  that  the  edition 
covers  the  period  concluded  by  the  end  of  the  last  century 
and  the  end  of  Queen  Victoria's  reign.  The  question  of 
bringing  out  another  edition,  omitting  matter  repealed  or 
spent  since  the  date  of  the  edition  to  which  I  have  referred, 
is  at  the  present  moment  engaging  the  attention  of  the  Statute 
Law  Committee,  a  body  about  which  I  shall  have  to  speak 


REFORM  OF  THE  ENGLISH  STATUTE  BOOK      35 

later  on.  In  these  editions  the  statutes  or  parts  of  statutes 
which  remain  unrepealed  are  arranged  in  chronological 
order.  No  attempt  has  been  made  to  digest  their  contents 
or  to  group  or  arrange  them  under  appropriate  heads.  The 
work  of  revision  has  therefore  not  been  carried  as  far  as  it 
has  been  in  some  of  your  States. 

Our  Revised  Statutes  are  not  popular  reading,  nor  do  they 
belong  to  the  class  of  books  which,  according  to  the  book- 
seller, no  gentleman's  library  should  be  without.  And  a 
professional  lawyer  generally  prefers  to  use  some  edition 
of  the  particular  statutes  with  which  he  is  specially  con- 
cerned. These  circumstances  may  account  for  the  fact 
that  the  publication  of  these  revised  editions  by  the  British 
Stationery  Office  on  behalf  of  the  State  is  not  a  remunerative 
enterprise.  But  as  their  utility  has  been  questioned,  it  may 
be  worth  while  to  illustrate  by  a  few  facts  and  figures  the 
amount  of  cost  and  labour  which  they  save.  "After  omission 
of  repealed  and  expired  statutes  to  a  vast  amount,"  wrote 
Bentham  towards  the  beginning  of  the  last  century,1  "the 
present  price  of  the  last  edition  of  the  statutes  exceeds  the 
average  income  of  any  individual  of  the  labouring  classes 
in  England." 

The  first  edition  of  the  Revised  Statutes  substituted 
eighteen  volumes  for  one  hundred  and  eighteen. 

The  second  edition  contains  in  five  volumes  the  enact- 
ments down  to  the  beginning  of  Queen  Victoria's  reign, 
enactments  which  occupied  seventy-seven  volumes  of  the 
statutes  at  large. 

There,  are,  indeed,  two  classes  of  persons  whose  needs 
the  revised  edition  will  not  fully  meet,  and,  I  may  point  out, 
was  not  specially  designed  to  meet.  The  judge  who  has  to 

»  Works  by  Bowring,  III,  239. 


36  THE  MECHANICS  OF  LAW  MAKING 

decide,  the  counsel  who  has  to  advise  on,  the  construction 
of  an  obscure  enactment  frequently  finds  it  necessary  to 
refer  to  the  language  of  Acts,  sections,  or  words  which  have 
been  repealed,  either  as  dead  law,  by  statute  law  revision 
Acts,  or  as  superseded  law,  by  amending,  or  consolidating 
Acts.  To  the  historical  student  the  law  of  the  past  is  even 
more  important  than  the  law  of  the  present.  Both  these 
classes  of  persons  require  an  edition  of  the  statutes  contain- 
ing everything  that  has  been  repealed,  either  by  way  of 
statute  law  revision  or  otherwise.  But  both  these  classes 
may  derive  material  assistance  from  the  notes  and  tables 
in  the  revised  edition  which  show  the  reasons  for  each  repeal 
or  omission.  And  to  the  ordinary  legislator,  official,  lawyer, 
or  member  of  the  public,  it  is  an  immense  advantage  to  have 
an  edition  of  the  statutes  which  contains  only  living  law, 
which  is  comprised  within  a  reasonable  compass,  and  which 
can  be  purchased  for  a  reasonable  price.  Speaking  from 
my  experience  as  a  government  draftsman,  I  can  con- 
fidently say  that  the  existence  of  such  an  edition  immensely 
facilitates  his  work. 

Let  me  pass  from  the  task  of  expurgating  and  revising, 
to  that  of  consolidating,  the  statute  law.  The  terms  con- 
solidation and  codification  are  sometimes  used  as  synony- 
mous. But  I  think  that  there  is  some  advantage  in  giving 
them  distinct  and  separate  meanings.  By  consolidation 
I  mean  the  combination  into  a  single  statute  of  several 
statutes  or  parts  of  statutes  dealing  with  the  same  subject. 
By  codification  I  mean  the  reduction  into  a  systematic  form 
of  the  whole  of  the  law,  statute  law  or  common  law,  relating 
to  a  given  subject.  Consolidation  deals  with  statute  law 
alone  as  interpreted  and  explained  by  judicial  decisions. 
Codification  deals  both  with  common  law  and  with  statute 


REFORM  OF  THE  ENGLISH  STATUTE  BOOK  37 

law.  In  consolidating  statute  law  you  have  to  consider  and 
reproduce,  unless  you  determine  to  alter,  the  effect  of  judi- 
cial decisions.  You  also  have  to  consider  the  reciprocal 
bearings  of  the  statute  law  and  of  the  rules  of  common  law 
on  which  it  is  based,  which  it  presupposes  and  which  it  may 
or  may  not  vary.  In  codifying  common  law  you  have  to 
incorporate  rules  which  have  already  been  reduced  to  statu- 
tory form. 

Now  about  the  advantages  to  be  derived  from  the  con- 
solidation of  statute  law,  there  can  be  no  question.  What 
is  more  maddening  to  the  professional  lawyer,  to  the  official, 
and  to  the  ordinary  citizen  than  to  have  to  hunt  for  your 
law  in  a  dozen,  or  it  may  be  a  score  or  more,  of  different 
statutes  scattered  over  several  volumes,  or  at  the  best  several 
parts  of  some  one  inconveniently  big  volume,  repeating, 
repealing,  implying,  qualifying,  referring  to  each  other? 
What  is  it  that  is  responsible  for  the  unintelligible  form  — 
I  am  speaking  here  mainly  of  English  legislation  —  for  the 
unintelligible  form  of  so  many  of  the  bills  introduced  into 
our  legislature,  and  especially  for  the  abuses  of  referential 
legislation  which  are  such  a  favourite  topic  of  invective  in 
England  ?  Surely  it  is  the  chaotic  and  fragmentary  condition 
of  our  statute  law  which  makes  an  amending  Act  a  new  and 
ugly  patch  on  a  complicated  piece  of  patchwork.  All  this 
is  universally  admitted,  and  that  is  why  we  are  all  for  con- 
solidation —  in  the  abstract.  What  many  people  are  apt 
to  overlook  is  the  difficulty  involved  in  the  performance 
of  that  task.  The  tasks  of  expurgation  and  revision,  to 
which  I  have  referred,  are  difficult  enough ;  but  the  work 
of  consolidation  is  still  more  difficult.  As  I  have  said  before, 
the  work  required  is  not  mechanical,  and  involves  far  more 
than  the  use  of  paste  and  scissors.  Consider,  for  instance, 


38  THE  MECHANICS  OF  LAW  MAKING 

the  difficulties  arising  from  the  differences  of  language  be- 
tween statutes  of  different  dates.  Our  statute  law  extends 
over  seven  centuries  of  the  ^national  life,  and  every  statute 
speaks  with  the  language  and  bears  the  colour  of  its  time. 
What  would  be  the  literary  effect  of  placing  in  immediate 
juxtaposition  sentences  or  fragments  of  sentences  from 
Wyclif,  Sir  Thomas  More,  Bacon,  Johnson,  Macaulay?  Or 
conceive  a  line  of  soldiers  consisting  of  the  Black  Prince's 
long-bowmen,  Cromwell's  buff-coated  troops,  the  grenadier 
of  the  "March  to  Finchley,"  and  Mr.  Thomas  Atkins, 
marching  shoulder  to  shoulder.  Such  a  literary  jumble, 
such  a  motley  and  ill-assorted  array,  would  be  produced  by 
a  congeries  of  extracts  from  Plantagenet,  Tudor,  Georgian, 
and  Victorian  statutes.  Your  statute  books  do  not  go 
back  so  far  as  ours,  and  you  have  not  much  to  do  with 
Plantagenet  and  Tudor  statutes.  But  I  have  quite  recently 
been  supervising  an  attempt  to  consolidate  the  Acts  of  Par- 
liament which  relate  to  the  government  of  India,  Acts 
which  run  back  to  the  reign  of  George  III,  when  your  great 
republic  was  being  shaped,  and  I  have  found  great  diffi- 
culty in  modernizing  the  language  and  adapting  to  modern 
conditions,  enactments  which  date  from  the  time  of  Pitt 
and  Fox,  of  Warren  Hastings,  and  of  the  old  East  India 
Company. 

I  speak  of  adaptations  to  modern  conditions,  because, 
apart  from  considerations  of  language,  every  statute  is 
framed  with  reference  to,  and  presupposes  the  existence  of, 
the  law,  the  judicial  and  administrative  institutions,  and 
the  social  conditions  of  its  time.  The  consolidator  cannot 
afford  to  overlook  the  subtle  and  elusive  effects  produced  on 
the  operation  of  a  statute  by  changes  in  the  rules  of  sub- 
stantive law,  in  rules  of  procedure,  or  in  social  conditions. 


REFORM  OF  THE  ENGLISH  STATUTE  BOOK   39 

Even  when  enactments  relating  to  the  same  subject-matter 
belong  approximately  to  the  same  period,  they  are  not  unfre- 
quently  drawn  in  different  styles ;  and  employ,  intentionally 
or  deliberately,  different  phrases  to  express  the  same  thing ; 
and  differences  of  this  kind  must  be  removed  if  ambiguity 
'  and  inconsistency  are  to  be  avoided. 

Lastly,  the  comparison  and  recasting  of  different  enact- 
ments are  certain  to  bring  to  the  surface  obscurities  and 
inconsistencies,  some  of  which  may  have  been  made  the  sub- 
ject of  judicial  or  other  comment,  while  others  may  have 
lurked  unseen.  It  is  difficult  to  justify  the  retention  or 
stereotyping  of  these  defects,  and  at  the  same  time  it  is 
difficult  to  remove  them  without  incurring  the  charge  of 
altering,  while  professing  to  reproduce,  the  law. 

The  upshot  is  that  the  work  of  consolidation  requires 
intimate  acquaintance  with  past  as  well  as  with  existing 
laws  and  institutions ;  involves  the  rewriting,  and  not  merely 
the  placing  together,  of  laws;  the  substitution  of  modern 
for  antiquated  language  and  machinery,  the  harmonizing 
of  inconsistent  enactments,  and  yet  the  performance  of  this 
work  in  such  a  way  as  to  effect  the  minimum  of  change  in 
expressions  which  have  been  made  the  subject  of  judicial 
decisions  and  on  which  a  long  course  of  practice  has  been 
based.  The  performance  of  such  a  task  with  the  degree 
of  accuracy  properly  required  by  Parliament  requires  minute 
examination  and  careful  deliberation,  and  imposes  a  heavy 
burden,  not  merely  on  the  draftsman,  but  on  numerous 
members  of  the  official  administrative  staff. 

Apart  from  the  difficulty  of  preparing  consolidation  bills, 
there  is  great  difficulty  in  getting  them  through  Parliament. 
Statute  law  reform  is  one  of  those  things  which  every  one 
praises  in  the  abstract,  but  about  which,  in  its  concrete  from, 


40  THE  MECHANICS  OF  LAW  MAKING 

no  one  is  enthusiastic.  No  minister  expects  to  obtain  credit 
from  passing  a  measure  of  consolidation.  Such  measures 
are  not  eagerly  demanded  by  the  constituencies,  and  do 
not  figure  as  items  in  any  political  programme.  The  per- 
manent official,  to  whom  a  minister  looks  for  advice,  is  often 
reluctant  to  alter  the  form  of  Acts  with  which  he  is  familiar, 
and  knows  that  the  preparation  of  a  consolidation  bill  may 
severely  tax  the  time  of  himself  and  his  subordinates.  Hence 
a  minister  is  naturally  unwilling  to  introduce  such  a  measure 
except  on  an  assurance  that  it  will  pass  unopposed,  and 
will  not  encroach  on  the  scanty  time  available  for  proposals 
looming  more  largely  in  the  public  eye.  And  such  an  as- 
surance cannot  always  be  obtained.  It  is  difficult  to  dis- 
abuse the  average  member  of  Parliament  of  the  notion  that 
the  introduction  of  a  consolidation  bill  affords  a  suitable 
opportunity  for  proposing  amendments,  to  satisfy  him  that 
re-enactment  does  not  mean  approval  or  perpetuation  of 
the  existing  law,  or  to  convince  him  that  attempts  to  combine 
substantial  amendment  with  consolidation  almost  inevitably 
spell  failure  in  both. 

At  the  end  of  the  last  century,  when  I  was  writing  the  book 
from  which  I  have  reproduced  some  passages  here,  I  was 
disposed  to  take  a  rather  despondent  view  of  the  prospects 
of  further  progress  in  the  consolidation  of  English  statute 
law.  A  great  deal  of  very  useful  work  had  been  done  by 
successive  generations  of  patient  and  laborious  draftsmen 
at  the  instance,  by  the  help,  and  under  the  encouragement 
of  Lord  Chancellors  and  other  eminent  lawyers,  and  with  the 
acquiescence  of  the  legislature.  But  parliamentary  diffi- 
culties had  increased,  and  the  work,  which  ought  to  be 
always  steadily  continued,  appeared  to  have  come  tem- 
porarily to  a  standstill.  Since  then  the  prospects  have 


REFORM  OF  THE  ENGLISH  STATUTE  BOOK      41 

brightened.  It  is  true  that  during  the  last  six  or  seven  years 
the  time  of  that  overworked  official,  the  parliamentary 
counsel  to  the  Treasury  or  government  draftsman,  has  been 
fully  occupied  and  more  than  occupied  by  current  legislation, 
and  he  has  had  no  leisure  to  devote  to  the  preparation  or 
supervision  of  legislative  measures  not  arising  out  of  imme- 
diate political  necessities.  But,  on  the  other  hand,  the  House 
of  Commons  has  recently  shown  itself  more  inclined  to 
appreciate  the  importance  of  this  class  of  legislation  and  to 
welcome  and  to  facilitate  the  passing  of  consolidation  bills, 
whether  in  combination  with,  in  anticipation  of,  or  as  a  conse- 
quence of,  substantial  amendment  of  the  law.  For  instance,  it 
was  found  possible  in  1910  to  pass,  by  general  agreement,  an 
Act  consolidating  the  enactments  which  relate  to  the  licensing 
of  the  sale  of  intoxicating  liquor,  a  notoriously  thorny  and 
controversial  subject.  Still  more  recently,  our  Perjury  Act 
of  1912  and  Forgery  Act  of  1913  have  effected  an  enormous 
simplification  of  an  important  branch  of  our  statutory 
criminal  law.  The  Perjury  Act,  which  consists  of  19  sections, 
supersedes  and  repeals  enactments  contained  in  no  less  than 
132  different  Acts  of  Parliament. 

I  ought  to  say  that  other  parts  of  the  British  dominions 
appear  to  have  shown  themselves  more  alive  to  the  impor- 
tance of  consolidating  their  statute  law  than  the  mother 
country.  Reports  from  the  self-governing  dominions  and 
from  the  Crown  colonies  show  that  their  legislatures  have 
in  recent  years  passed  a  large  number  of  useful  consolidation 
Acts. 

I  have  spoken  about  the  processes  which  have  been  ap- 
plied to  English  statute  law  for  the  purpose  of  making 
it  more  intelligible,  and  of  thereby,  among  other  things, 
facilitating  the  work  of  the  legislature  and  the  draftsman; 


42  THE  MECHANICS  OF  LAW  MAKING 

the  four  processes  of  indexing,  expurgation,  revision,  and 
consolidation.  Let  me  now  say  something  about  the  agencies 
by  which  these  processes  have  been  carried  out.  The  chief 
motive  power  has  been  supplied  by  the  eminent  lawyers,  Lord 
Chancellors  and  others,  who  have  from  time  to  time  taken 
interest  in  the  work,  and  the  execution  has  depended  largely 
on  the  good-will  of  Parliament.  But  there  are  two  per- 
manent agencies  which  have  given  constant  and  useful 
aid,  and  have  done  what  they  can  to  see  that  the  work  is 
systematically  and  continuously  carried  on.  One  of  them 
is  the  Statute  Law  Committee,  which  was  first  appointed 
in  1868  by  Lord  Cairns,  when  Lord  Chancellor,  to  make 
the  necessary  arrangements  for  the  first  revised  edition  of 
the  statutes  and  to  superintend  the  execution  of  the  work. 
This  body  has  been  continued  ever  since  by  new  appoint- 
ments, and  its  function  is  to  superintend  the  work  of  statute 
law  revision,  and  the  publication  and  indexing  both  of  the 
statutes,  and  also  of  the  great  mass  of  subordinate  legis- 
lation which  consists  of  statutory  rules  and  orders,  and  to 
look  after  sundry  other  matters  connected  with  the  form 
of  the  statute  law.  The  committee  has  in  its  time  included 
some  very  eminent  men,  such  as  our  late  Ambassador  to 
your  country,  Mr.  James  Bryce,  who  always  used  to  take 
great  interest  in  its  work  down  to  the  time  when  he  came  over 
here.  The  members  of  the  committee  are  appointed  by  the 
Lord  Chancellor.  They  are  unpaid,  and  employ  as  their 
secretary  an  officer  of  the  House  of  Lords.  For  payment  of 
the  staff  who  work  for  them  or  under  their  supervision,  they 
get  grants  of  money  from  the  Treasury,  but  the  amounts 
which  they  require  vary  according  to  the  amount  of  work 
which  happens  to  be  going  on  at  the  time.  For  the  current 
financial  year  they  have  only  asked  for  the  moderate  sum 


REFORM  OF  THE  ENGLISH  STATUTE  BOOK  43 

of  £513,  about  $2500.  The  committee  act  as  advisers  to 
the  Lord  Chancellor  in  the  matters  to  which  I  have  referred, 
and  he  is  their  official  mouthpiece  in  the  House  of  Lords. 

The  other  agency  is  the  office  of  the  parliamentary  counsel 
to  the  Treasury  or  government  draftsman,  about  which  I 
shall  have  a  good  deal  to  say  later  on,  because  it  is  the  office 
by  which  in  England  all  the  government  legislation  is  put 
into  shape.  For  the  present  it  must  suffice  to  say  that  the 
parliamentary  counsel  has  always  been  a  member  of  the 
Statute  Law  Committee,  and  the  consolidation  work  recom- 
mended by  it,  and  to  some  extent  the  indexing  of  the  statute 
law  and  the  preparation  of  the  statute  law  revision  bills,  have 
been  done  by  draftsmen  working  under  his  instructions.  In 
fact,  the  task  of  indexing,  expurgating,  and  rearranging  the 
statute  law  practically  constituted  a  second  charge  on  the  time 
of  his  office,  and  occupied  all  the  time  that  could  be  spared 
from  attending  to  current  legislation,  and  advising  on  ques- 
tions connected  with  that  legislation.  During  recent  years 
his  time  has  been  fully  occupied  and  more  than  fully  occupied 
—  for  he  has  been  terribly  overworked  —  by  the  work  of 
current  legislation,  and  he  has  had  no  time  to  spare  for 
anything  outside  that  work. 


Ill 

THE  COMPARATIVE   STUDY  OF  LEGISLATION1 

I  OBSERVE  that  in  the  papers  which  have  been  kindly  sup- 
plied to  me  by  Mr.  Putnam  and  Mr.  Parkinson  about  bill 
drafting  and  legislative  reference  bureaus,  a  great  deal  has 
been  said,  and  rightly  said,  about  the  importance  of  the 
legislator  being  supplied  with  information,  not  only  auout 
the  statute  law  of  his  own  country  or  his  own  state,  but  also 
about  the  condition  of  the  law  and  the  course  of  legislation 
on  the  subject  with  which  he  deals  in  neighbouring  states 
and  in  other  countries.  It  is  natural  that  the  need  of  this 
information  should  be  specially  felt  in  this  great  country 
where  you  have  so  many  State  Legislatures,  all  dealing  con- 
currently with  similar  legislative  problems.  The  need  is 
felt  very  strongly  in  my  own  country  also,  and  indeed  by  all 
European  legislatures,  and  therefore  I  think  it  would  interest 
you  if  I  were  to  say  something  about  the  agencies  which  are 
available  in  England  to  supply  this  need,  and  the  steps  which 
have  been  taken  to  meet  it.  In  one  of  these  agencies  I  am 
personally  very  much  interested,  because  I  was  to  some  extent 
responsible  for  its  establishment.  I  am  referring  to  the 
English  Society  of  Comparative  Legislation.  The  institu- 
tion of  this  society  arose  out  of  a  paper  which  I  read  in  No- 
vember, 1894,  and  in  which  I  directed  attention  to  the  diffi- 
culty then  experienced  in  obtaining  satisfactory  information 
about  the  course  of  legislation  in  other  parts  of  the  British 

1  This  chapter  was  intended  to  form  part  of  the  lecture  reproduced  in  the 
preceding  chapter,  but  was  omitted  for  lack  of  time. 

44 


THE  COMPARATIVE  STUDY  OF  LEGISLATION     45 

dominions  and  in  foreign  countries,  and  made  some  sugges- 
tions as  to  the  expediency  of  taking  steps  towards  devising 
and  organising  provision  for  better  information  on  this  im- 
portant subject.  The  paper  attracted  a  good  deal  of  fa- 
vourable attention,  and  at  a  meeting  which  was  held  in  the 
following  month,  and  at  which  were  present  some  very  dis- 
tinguished and  influential  persons,  —  great  lawyers,  great 
administrators,  agents-general,  ambassadors,  and  other 
representatives  of  foreign  countries,  —  a  resolution  was 
passed  affirming  the  expediency  of  establishing  a  Society  of 
Comparative  Legislation,  with  the  object  of  promoting 
knowledge  of  the  course  of  legislation  in  different  countries, 
more  particularly  in  the  several  parts  of  the  British  domin- 
ions and  in  the  United  States.  The  resolution  was  proposed 
by  Lord  Herschell,  then  Lord  Chancellor,  and  was  seconded 
by  Sir  Robert  Herbert,  one  of  our  most  eminent  colonial 
administrators.  This  resolution  was  the  origin  of  the 
Society  of  Comparative  Legislation.  It  has  continued  ever 
since  and  has,  I  venture  to  think,  done  some  very  useful 
and  important  work.  Lord  Herschell  was  the  first  presi- 
dent, and  his  office  is  now  held  by  Lord  Rosebery.  I  have 
the  honour  of  being  the  chairman  of  its  executive  committee. 
The  society  publishes  a  journal,  of  which  the  chief  editor  is 
Sir  John  Macdonell,  Professor  of  Comparative  Law  in  the 
University  of  London,  and  a  very  high  authority  on  questions 
of  international  law.  The  society  has,  as  I  have  said,  done 
in  the  past,  and  is  continuing  to  do,  much  useful  work.  But 
the  difficulties  with  which  it  has  had  to  contend  are  very 
serious,  and  I  mention  them  because  it  is  probable  that  simi- 
lar difficulties  would  beset  the  work  of  similar  agencies  over 
here.  Our  scope  is  extensive  and  ambitious,  the  work  which 
we  have  undertaken  is  laborious,  and  it  is  carried  on  by 


46  THE  MECHANICS  OF  LAW  MAKING 

zealous  men,  who  do  the  work  for  the  love  of  it,  and  whose 
services  are  unpaid,  for  our  financial  means  are  wholly  in- 
adequate for  the  purpose  of  carrying  out  our  objects  in  the 
manner  in  which  and  to  the  extent  we  should  wish  to  see 
them  carried  out.  We  have  received,  and  we  continue  to 
receive,  most  valuable  assistance  in  the  way  of  encourage- 
ment and  co-operation,  from  some  of  our  government  de- 
partments, such  as  the  Colonial  Office  and  the  India  Office, 
and  from  Indian  and  Colonial  governments.  And  we  get 
some  pecuniary  contributions  from  these  departments  and 
governments,  and  from  some  private  individuals  and  so- 
cieties who  are  interested  in  our  work.  But  we  depend  al- 
most entirely  on  unpaid  voluntary  exertions.  We  have  no 
endowments,  and  we  have  no  wealthy  individuals  at  our  back. 
Still  we  have  existed  and  worked  for  nearly  twenty  years, 
and  we  hope  and  believe  that  we  shall  be  able  to  carry  on  our 
work.  Let  me  give  you  two  illustrations  of  the  work  which 
the  society  has  done. 

One  of  the  first  things  that  was  proposed  was  to  obtain, 
through  a  committee  formed  for  the  purpose,  and  by  means 
of  communications  addressed  to  the  governments  of  the 
several  British  possessions  in  different  parts  of  the  world, 
information  about  the  existing  conditions  of  their  statute 
law,  with  special  reference  to  such  points  as  its  form,  the 
modes  of  preparing  and  passing  bills,  the  revision  and  amend- 
ment of  statutes,  the  form  and  manner  of  their  publication, 
the  measures  taken  to  secure  uniformity  of  language,  con- 
solidation, codification  and  indexing.  The  society  under- 
took this  work,  sent  to  the  governments  of  the  different 
parts  of  the  British  dominions  a  number  of  questions  which 
I  am  afraid  must  have  given  them  a  great  deal  of  trouble  to 
answer,  but  which  they  were  most  kind  and  helpful  in  an- 


THE  COMPARATIVE  STUDY  OF  LEGISLATION     47 

swering ;  and  by  these  means  collected  a  great  quantity  of 
useful  information,  which  was  published  in  the  journal 
of  the  society,  and  of  which  I  took  advantage  subsequently 
in  a  book  of  my  own. 

A  list  of  the  questions  which  were  sent  out,  may  interest 
you,  because  they  are  questions  of  the  same  kind  as  those 
which,  I  understand,  are  now  engaging  the  attention  of  a 
good  many  persons  and  associations  in  this  country.  The 
list  is  as  follows :  — 

I.  Common  Law  as  the  Basis  of  Statute  Law 

1.  What  is  the  common  law  of  the  colony?    Under  what  cir- 
cumstances, and  by  whose  authority,  was  it  introduced? 

2.  Is  there  any  law  applying  exclusively  to  particular  races  or 
creeds  ? 

II.  Statute  Law 

1.  Of  what  does  the  statutory  or  enacted  law  of  the  colony 
consist?    To  what  extent  is  it  embodied  in  charters,  regulations, 
orders  in  Council,  ordinances,  or  Acts  ? 

2.  To  what  extent  do  the  statutes  of  the  United  Kingdom 
operate  in  the  colony  by  virtue  of  either :  — 

(a)  Original  extension  of  English  law  to  the  colony ; 

(6)  Express  provisions  of  any  order  in  Council  or  charter ;  or 

(c)  Express  adoption  by  the  legislature  of  the  colony  ? 

3.  Is  the  statute  law  of  any  other  colony  in  force  in  the  colony  ? 
(This  may  happen  where  one  colony  has  been  severed  from  another.) 

4.  Is  any  code  or  other  body  of  enacted  law  of  non-British 
origin  in  force  in  the  colony  ? 

III.   Methods  of  Legislation 

1.  By  whom  are  drafts  of  legislative  measures  prepared?  Is 
there  any  official  draftsman  ?  If  so,  by  whom  is  he  appointed,  to 
whom  is  he  responsible,  and  what  are  his  staff  and  duties?  Do 
his  duties  extend  to  measures  introduced  by  private  or  non-official 
members  of  the  legislative  body  ? 


48  THE  MECHANICS  OF  LAW  MAKING 

2.  What  is  the  constitution  of  the  legislative  chamber  or  cham- 
bers through  which  measures  have  to  pass  ?     (A  reference  to  statute 
law,  or  charter,  or  order  in  Council,  or  to  any  recognised  textbook 
will  suffice.)     If  there  are  two  chambers,  may  measures  be  intro- 
duced into  either  ? 

3.  Are  draft  measures  published  before  introduction,  or  before 
any  other  stage  ?    If  so,  under  what  rules  ? 

4.  Through  what  stages  does  a  measure  pass  before  it  becomes 
law? 

5.  Is  any  opportunity  afforded  for  referring  measures,  while  in 
course  of  passage  through  the  legislature,  to  any  special  officer  or 
committee  on  points  of  form  ? 

6.  Have  any  steps  been  taken  to  secure  uniformity  of  language, 
style,  or  arrangement  of  statutes  either  by  means  of  a  measure 
corresponding  to  'Brougham's'  Act  (13  &  14  Viet.  c.  21)  or  to  the 
Interpretation  Act,  1889  (52  &  53  Viet.  c.  63)  or  by  official  instruc- 
tions or  otherwise  ? 

7.  Is  there  an  annual  session  of  the  legislature  ?    Are  there  any 
fixed  or  customary  periods  of  session  ? 

8.  How  are  the  Acts  or  ordinances  of  the  colony  numbered  or 
distinguished  ?    Are  they  numbered  by  reference  to  the  calendar, 
or  to  the  regnal  year,  or  in  any  other  way  ?    Is  it  the  practice  to 
confer  for  convenience  of  citation  a  'short  title'  on  each  Act  or 
ordinance  ?    How  long  has  this  practice  been  followed  ? 

9.  Are  private  bills  (if  any)  treated  separately,  and  under  dif- 
ferent conditions  from  public  bills  ?    On  what  principle  is  the  line 
drawn  between  public  and  private  bills?    Are  private  Acts  or 
Ordinances  separately  numbered? 

10.  Does  any  practice  exist  of  accompanying  a  measure  on  its 
introduction  by  an  explanatory  memorandum  ? 

IV.   Publication  of  Statutes 

1.  In  what  manner  and  under  what  authority  are  statutes 
promulgated?    What  evidence  is  accepted  of  a  statute  having 
been  duly  passed? 

2.  In  what  form  or  forms,  and  under  what  authority,  are  statutes 
printed  for  publication  ? 


THE  COMPARATIVE  STUDY  OF  LEGISLATION     49 

3.  Are  the  statutes  of  each  session  published  in  a  collected  form 
at  the  end  of  the  session? 

4.  Are  the  periodical  volumes  of  statutes  accompanied  by  (a)  an 
index  and  table  of  contents,  (6)  a  table  showing  the  effect  on  pre- 
vious legislation  ? 

5.  What  collective  editions  (if  any)  of  the  statute  law  of  the 
colony  have  been  published,  and  whether  by  the  government  or 
by  private  enterprise  ?    Are  these  or  any  of  them  periodical  ?    Do 
such  editions  comprise  those  Acts  of  the  United  Kingdom  in  force 
in  the  colony  ? 

6.  Is  there  any  edition  of  'Selected  Statutes'  corresponding  to 
Chitty's  ' Statutes  of  Public  Utility'? 

7.  How  are  private  Acts  published  ? 

V.  Revision  of  Statutes 

1.  Have  any  steps  been  taken  for  the  revision  and  expurgation 
of  the  statute  law,   whether  periodically  or  otherwise?    What 
machinery,  if  any,  exists  for  this  purpose? 

2.  Is  there  any  edition  of  'Revised  Statutes'  showing  those 
actually  in  force  ?    If  so,  under  what  authority  is  it  prepared  and 
published,  and  what  is  the  date  of  the  latest  edition  ?    Is  it  pub- 
lished at  periodical  intervals,  or  how  otherwise  ?    Are  the  contents 
arranged  alphabetically,  chronologically,  or  on  any  other  principle  ? 

VI.  Indexing  of  Statute  Law 

Is  there  any  general  index  to  the  statutes  of  the  colony  ?  If  so, 
on  what  principle  is  it  arranged,  and  after  what  interval  is  it  re- 
vised? Does  it  include  both  public  and  private  Acts  or  ordi- 
nances, and  the  statutes  of  the  United  Kingdom  which  are  in  force 
in  the  colony  ?  Is  it  accompanied  by  any  tables  showing  how  each 
statute  has  been  dealt  with  ?  What  is  the  date  of  the  latest  edition  ? 

VII.   Consolidation  and  Codification 

1.  What  steps  have  been  taken  to  consolidate  the  whole  or 
particular  parts  of  the  statute  law,  or  to  codify  any  branches  of  the 
law? 


50  THE  MECHANICS  OF  LAW  MAKING 

2.  Does  any  machinery  exist  for  this  purpose?    Is  the  work 
now  in  progress? 

3.  What  l codes'  are  now  in  force  in  the  colony?    When  and 
by  whom  were  they  prepared,  and  on  what  materials  were  they 
based? 

VIII.  Subordinate  Legislation 

What  official  or  other  machinery  exists  for  the  preparation, 
passing,  or  promulgation  of  measures  of  subordinate  legislation, 
such  as  rules  or  orders  made  by  the  governor,  or  a  minister  or 
department  under  the  express  authority  of  statute  or  ordinance? 
Is  there  any,  and  what  collection  of,  or  index  to,  such  subordinate 
measures  ? 

Another  thing  which  the  society  proposed  to  do  was  to 
give  some  account  of  the  course  of  legislation  throughout 
the  British  empire,  and  so  far  as  possible  in  foreign  coun- 
tries. "A  difficult  and  ambitious  task/'  you  will  say.  Yes ; 
both  ambitious  and  difficult;  but,  thanks  to  the  help  of 
friends  in  different  parts  of  the  world  and  to  the  zeal  and 
indefatigable  labours  of  the  editors  of  the  society's  Journal, 
and  of  the  colleagues  whom  they  have  called  to  their  assist- 
ance, it  has  been  accomplished.  For  every  year  since  1895 
the  society  has  brought  out  in  its  Journal  a  summary  of 
current  legislation,  published  as  soon  as  possible  after  suffi- 
cient time  had  elapsed  for  collecting,  tabulating,  digesting, 
and  summarising  our  materials.  A  beginning  was  made  with 
the  work  of  the  several  British  legislatures,  some  sixty  in  num- 
ber, and  the  survey  has  been  extended  to  the  United  States, 
where  there  are  some  fifty  or  more  legislatures,  and  also  to 
the  continent  of  Europe.  But  of  course,  in  dealing  with 
foreign  countries,  it  has,  for  reasons  which  will  be  obvious, 
been  found  impossible  to  make  the  review  as  regular,  sys- 
tematic, or  complete  as  in  dealing  with  legislation  of  the 
British  empire. 


THE  COMPARATIVE  STUDY  OF  LEGISLATION     51 

The  summaries  of  British  legislation  for  the  decennial 
period  1898-1907  will  be  found  collected  in  a  useful  work  of 
four  volumes  entitled  The  Legislation  of  the  Empire. 

I  doubt  whether  any  one  who  has  not  attempted  the 
task  can  realise  the  enormous  labour  involved  in  collecting 
and  digesting  the  great  mass  of  legislative  material  with 
which  we  have  had  to  grapple.  I  can  speak  with  some  ex- 
perience, for  I  have  myself  summarised  for  each  year  the 
Indian  Acts,  with  the  subject-matter  of  which  I  happen  to 
have  greater  familiarity  than  most  persons  in  England. 

What  the  society  desired  to  do  was,  not  merely  to  compile 
a  dry  list  or  register  of  enactments,  but  to  bring  out  the 
features  of  novelty,  importance,  and  general  interest  in  each 
new  law.  But  in  order  to  do  this  properly,  one  ought  to 
have  some  acquaintance  with  the  previous  state  of  the  law 
and  the  history  of  legislation,  and  with  the  influences,  in- 
terests, arguments,  and  currents  of  opinion  which  have  been 
brought  to  bear  on  the  subject-matter  of  legislation.  And  the 
facts  ought  to  be  presented  in  such  a  way  as  not  to  give  rise 
to  charges  of  partiality,  prejudice,  or  captious  criticism.  In 
short,  the  society  wanted  an  army  of  competent  and  im- 
partial experts,  marshalled  and  controlled  by  exceptionally 
able  editors.  Of  course  the  society  has  not  realised,  and  did 
not  expect  to  realise,  its  ideals;  but  it  has  done  what  it 
could  with  the  persons  and  materials  at  its  disposal,  and  I 
believe  that  it  has  succeeded  in  doing  a  piece  of  work  which 
experience  has  proved  to  be  of  great  practical  value,  which 
has  been  much  appreciated  throughout  the  British  empire, 
and  which  has  reflected  the  greatest  credit  on  the  zeal, 
energy,  and  industry  of  the  editors  of  the  Journal  and  their 
staff. 

Judging  from  the  experience  which  we  have  obtained,  we 


52  THE  MECHANICS  OF  LAW  MAKING 

have  no  reason  to  suppose  that  the  interest  which  was  shown 
in  our  work  at  the  commencement  has  in  any  way  abated. 
On  the  contrary,  we  have  every  reason  to  believe  that  it 
has  increased  and  is  likely  to  increase.  Sitting  as  I  do,  at 
the  table  of  the  House  of  Commons  at  Westminster,  I  have 
some  means  of  forming  a  judgement  on  this  point.  I  have 
said  that  the  society  arose  from  a  recognition  of  the  need  of 
better  information  about  the  course  of  legislation  in  different 
parts  of  the  world.  Does  that  need  continue?  Is  it  still 
felt?  To  these  questions  there  can  be  but  one  answer. 
Everyone  who  has  had  anything  to  do  with  the  British  House 
of  Commons  must  have  been  struck  with  the  steady,  con- 
tinuous, growing  demand  for  information  of  this  kind.  It 
reveals  itself  in  the  debates  of  the  House,  in  questions  to 
ministers  and  in  requests  for  returns  —  questions  and  re- 
quests which  throw  an  enormous  burden  on  the  departments 
of  the  executive  government.  Take  some  of  the  most  prom- 
inent subjects  of  the  day  —  licensing,  education,  the  care  of 
children,  the  treatment  of  old  age.  The  British  government 
is  overwhelmed  with  requests  for  information  about  the 
laws  which  are  in  force  or  have  been  proposed  on  these  sub- 
jects in  the  different  parts  of  the  British  dominions  and  in 
other  parts  of  the  world. 

These  requests  come  not  merely  from  Westminster,  but 
from  other  parts  of  the  British  empire,  and  from  foreign 
countries;  and  the  supply  of  answers  to  them  occupies  a 
great  and  increasing  part  of  the  time  of  the  several  depart- 
ments of  the  government.  I  feel  sure  that  any  aid  which 
they  could  obtain  in  the  performance  of  this  onerous  task 
would  receive  a  most  hearty  welcome.  Our  society  has 
therefore  every  encouragement  on  this  ground  to  continue 
its  work,  and  to  extend  it  so  far  as  means  will  suffice. 


THE  COMPARATIVE  STUDY  OF  LEGISLATION     53 

For  instance,  the  annual  summaries  supply  useful  informa- 
tion about  the  course  of  legislation,  but  they  supply  only  a 
small  part  of  the  information  which  is  desirable.  One  wants 
to  know,  not  merely  what  laws  have  been  passed,  but  how 
they  work,  and,  in  some  cases,  whether  they  work  at  all. 
We  should  like  to  supplement  our  necessarily  meagre  annual 
reviews  of  legislation  by  monographs  on  particular  subjects 
of  legislation,  showing  the  laws  in  force  in  different  countries 
on  the  same  subject,  and  how  they  respectively  work  in 
practice.  Some  valuable  monographs  of  this  kind  will  be 
found  in  the  volumes  of  our  Journal,  and  we  should  like  to 
extend  their  number  largely.  But  I  need  hardly  remind 
you  how  difficult  work  of  this  kind  is,  if  it  is  to  be  well 
done,  and  what  an  amount  of  labour  and  of  expert  knowledge 
it  involves. 

If  we  were  in  a  position  to  extend  our  efforts  in  this  and 
other  ways,  we  might,  as  I  sometimes  dream,  establish  and 
maintain  something  which  would  be  the  recognised  organ  of 
those  who  are  engaged  in  the  study  either  of  comparative 
law  or  of  comparative  legislation,  playing  the  same  kind  of 
part  as  is  played  for  the  students  of  history  by  such  organs 
as  the  English  Historical  Review  and  by  similar  organs  in 
other  countries.  Such  an  organ  should  contain  articles  by 
competent  writers  on  special  subjects,  and  should  also  put 
its  readers  on  the  track  of  information  to  be  derived  from 
other  sources,  such  as  authoritative  treatises,  blue  books, 
periodicals,  and  special  articles  in  newspapers,  whose  cor- 
respondents often  supply  us  in  England  with  extremely 
valuable  information  about  the  nature  and  working  of  legis- 
lation in  different  parts  of  the  British  empire  and  in  foreign 
countries.  It  appears  to  me  that  there  is  need  for  such  an 
organ  as  this,  and  ample  room  for  it  beside  the  existing 


54  THE  MECHANICS  OF  LAW  MAKING 

organs  devoted  to  legal  subjects.  This  would  be  the  ideal 
at  which  I  should  aim.  But  to  make  even  an  approxima- 
tion to  its  attainment  would  involve  much  expense,  much 
labour,  and  careful  organisation. 

I  have  spoken  to  you  at  some  length  about  t,he  work 
carried  on  by  the  English  Society  of  Comparative  Legisla- 
tion, because  I  know  that  similar  work  is  being  carried  on  by 
similar  organisations  in  this  country.  Now  work  of  this 
kind  depends  entirely  on  the  co-operation  and  mutual  help 
of  many  men  and  many  minds  in  many  different  States  and 
countries.  We  in  England,  you  in  the  United  States,  others 
in  different  parts  of  the  British  dominions  and  in  foreign 
countries,  ought  to  know  all  about  each  other,  and  about  the 
work  in  which  we  are  severally  engaged,  and  we  ought  to 
help  each  other  in  what  is  really  an  international  work,  in 
every  ^possible  way,  by  supplying  information,  by  indicating 
paths  of  inquiry  which  may  be  usefully  pursued,  by  sub- 
scribing to  each  other's  journals  or  other  organs;  indeed, 
by  every  available  form  of  co-operation,  for  it  is  by  co- 
operation alone  that  we  can  apply  and  economize  our  labours. 

I  should  like  to  conclude  this  branch  of  my  subject  by  say- 
ing a  very  few  words  suggested  by  the  summaries  of  current 
legislation  to  which  I  have  referred.  Any  one  who  glances 
through  these  summaries  and  is  able  to  detach  his  mind  from 
their  arid  details  and  concentrate  it  on  their  general  features 
cannot  fail  to  be  struck  with  one  thing.  He  will  observe 
that  we,  the  great  civilised  nations  of  the  world,  are  all 
busily  engaged,  under  different  conditions  and  by  different 
methods,  in  pursuing  objects  which  are  similar  and  often 
identical.  We  are  all  attempting,  with  imperfect  vision 
and  with  stumbling  steps,  to  advance,  so  far  as  it  can  be 
advanced  by  legislation  and  administration,  the  cause  of 


THE  COMPARATIVE  STUDY  OF  LEGISLATION    55 

humanity  and  civilisation,  to  make  our  laws  more  intel- 
ligible and  more  rational,  to  make  better  provision  for  those 
who  are  unable  to  help  themselves.  We  have  all  much  to 
learn  from  each  other,  from  our  experiments,  from  our 
failures,  from  our  successes.  That  is  one  lesson  to  be  de- 
rived from  this  survey  of  legislation.  There  is  another. 
The  more  we  know  about  each  other,  the  more,  especially, 
that  we  direct  our  attention  to  those  aims  and  objects  which 
unite  instead  of  dividing  mankind,  the  more  we  endeavour 
to  understand,  appreciate,  and  sympathise  with  the  common 
work  hi  which  we  are  all  engaged,  the  less  we  are  likely  to 
be  influenced  by  those  suspicions  and  prejudices,  bred  of 
ignorance,  which  are  the  most  fertile  causes  of  discord  and 
of  war.  The  knowledge  which  it  is  the  object  of  this  English 
society  of  ours  and  of  similar  societies  elsewhere  to  provide 
and  to  organise  is  knowledge  which  makes  for  progress,  and 
makes  for  peace. 


IV 

ORIGIN  AND   FUNCTIONS  OF  THE  PARLIAMEN- 
TARY COUNSEL'S   OFFICE  IN  ENGLAND 

WHAT  efforts  have  been  made  in  England  to  improve  the 
form  of  current  legislation,  and  how  far  have  those  efforts 
been  successful?  This  was  the  second  of  the  questions 
which  I  asked  you  to  consider,  and,  to  answer  it,  I  must  again 
make  a  short  excursion  into  history. 

How  and  by  whom  parliamentary  bills,  bills  intended  to 
become  Acts  of  Parliament,  were  framed  before  a  quite  recent 
period  is  a  subject  which  is  involved  in  much  obscurity. 

In  the  earliest  period  of  parliamentary  history,  statutes 
or  Acts  of  Parliament  were  orders  made  by  the  King  on  peti- 
tions presented  by  or  through  Parliament.  It  was  for  the 
King  to  say,  after  taking  the  advice  of  the  wise  men  about 
him,  whether  any  order  was  to  be  made  on  such  a  petition, 
and,  if  any  order  was  to  be  made,  how  it  should  be  carried 
out. 

It  must  be  remembered  that  the  medieval  Parliament 
was  an  expansion  of  the  King's  Council,  and  this  fact  explains 
the  nature  of  the  business  which  it  had  to  transact. 

The  immediate  cause  of  summoning  a  Parliament  was 
usually  want  of  money.  The  King  had  incurred,  or  was 
about  to  incur,  expenses  which  he  could  not  meet  out  of 
his  ordinary  resources,  such  as  the  revenues  of  his  domain 
and  the  usual  feudal  dues.  He  summoned  a  Parliament 
and,  through  his  chancellor  or  some  other  minister,  explained 
what  he  wanted  and  why  he  wanted  it.  The  King's  speech 

56 


THE  PARLIAMENTARY  COUNSEL  57 

might  touch  on  other  great  matters,  about  which  he  might 
need  advice  or  approval,  but  money  was  the  gist.  On  the 
other  hand,  the  King's  subjects  had  grievances  for  which  they 
desired  redress.  The  grievances  would  be  of  different  kinds, 
breach  of  old  customs,  failure  to  observe  charters  or  laws, 
oppression  by  the  King's  officers  or  by  great  men,  maladmin- 
istration of  justice,  difficulties  in  the  way  of  settling  private 
disputes,  and  so  forth.  For  the  redress  of  these  grievances 
petitions  were  presented,  petitions  which  in  their  multifarious 
character  were  not  unlike  the  statements  of  grievances 
presented  to  the  national  assembly,  on  the  eve  of  the  French 
Revolution.  The  petitions  were  to  the  King  in  Parliament 
or  to  the  King  in  his  Council,  and  Parliament  was  the  peti- 
tioning body,  the  body  by  or  through  whom  the  petitions 
were  presented.  The  remedies  required  would  be  classified 
in  modern  language  as  judicial,  legislative,  or  administra- 
tive. But  in  the  thirteenth  century  these  distinctions  had 
not  been  clearly  drawn.  I  cannot  find  a  better  illustration  of 
the  way  in  which  judicial,  administrative,  and  legislative  reme- 
dies were  then  continued  than  in  a  statute  made  by  Edward  I 
in  his  Parliament  of  1292,  known  as  the  Statute  of  Waste, 
and  based  on  a  petition  presented  to  him  in  that  Parliament. 
The  statute  begins  with  a  long  story  showing  how  Gawin 
Butler  brought  a  complaint  before  the  King's  justices  about 
waste  done  to  his  land,  but  died  before  obtaining  judgement ; 
how  his  brother  and  heir,  William,  who  was  under  age  and 
a  ward  of  the  King,  sought  to  continue  the  proceedings; 
and  how  the  justices  differed  in  opinion  as  to  whether  he 
was  entitled  to  do  so.  Thereupon  the  King,  in  his  full 
Parliament  by  his  common  council  or  by  general  consent 
(for  the  Latin  phrase  wavers  between  the  two  meanings  of 
"council"  and  "counsel"),  ordains  that  all  heirs  may  have 


58  THE  MECHANICS  OF  LAW  MAKING 

an  action  by  writ  of  waste  for  waste  done  in  the  time  of  their 
ancestors,  and  the  King  himself  commands  his  justices  to 
give  judgement  accordingly.  Here  the  King  acts  partly  in 
his  legislative  capacity,  laying  down  a  general  rule,  partly 
in  his  judicial  capacity,  as  having  power  to  review  and  con- 
trol the  proceedings  of  his  justices,  and  partly  in  an  adminis- 
trative capacity  as  guardian  of  an  infant  heir. 

Now  the  responsibility  for  framing  these  statutes  would 
naturally  devolve  on  the  King's  judges  or  on  other  high  offi- 
cials belonging  to,  or  called  in  to  assist,  his  Council.  But 
when  legislation  on  petition  was  superseded  by  legislation 
by  bill,  when  Parliament  no  longer  merely  asked  for  a  law 
but  dictated  the  terms  in  which  it  was  to  be  framed,  the 
procedure  for  framing  it  would  naturally  alter,  and  doubtless 
some  alterations  took  place.  In  Tudor  times  the  King 
played  a  much  greater  part  in  the  initiation  of  legislation 
than  had  been  played  by  his  Lancastrian  predecessors,  and 
Henry  VIII,  in  particular,  took  a  keen,  active,  and  personal 
interest  in  the  legislation  of  his  Parliaments.  Indeed,  Froude 
goes  so  far  as  to  tell  us  that  Henry  not  only  dictated  but 
drafted  his  own  laws,  and  refers  to  a  particular  Act  as  the 
composition  of  Henry  himself  and  the  most  finished  which 
he  has  left  to  us.  But  I  have  been  unable  to  find  satisfactory 
authority  for  this  characteristically  bold  statement. 

It  seems  probable,  though  I  have  not  investigated  the  sub- 
ject carefully,  that  the  most  important  Acts  of  the  Tudor 
period  were  framed  by  committees  of  the  Privy  Council, 
such  as  the  committee  which  was  appointed  in  1583  "  to  con- 
sider what  laws  shall  be  established  in  this  Parliament,  and 
to  name  men  that  shall  make  the  books  thereof ." 

In  the  period  after  the  Restoration,  the  judges,  who  at 
that  time  assisted  the  House  of  Lords,  not  only  in  their 


THE  PARLIAMENTARY  COUNSEL  59 

judicial  but  in  their  legislative  business,  and  habitually 
attended  the  sittings  of  the  House  for  that  purpose,  appear 
to  have  been  occasionally  employed  by  the  House  as  drafts- 
men of  bills  or  clauses.  Sometimes  the  heads  of  a  bill  were 
agreed  to  by  the  House,  and  a  direction  was  given  either  to 
the  judges  generally  or  to  particular  judges,  to  prepare  a 
bill.  In  other  cases  a  judge  would  attend  a  grand  committee 
of  the  House  as  a  kind  of  assessor,  and  do  such  draiting  work 
as  was  required.  It  is  not  clear  how  long  this  practice 
continued,  but  there  is  an  interesting  reference  to  it  in  a 
speech  delivered  by  Lord  Hardwicke  in  the  House  of  Lords 
on  the  Militia  Bill  in  1756,1  and  I  will  venture  to  quote  a 
passage  from  his  speech  because  it  illustrates  the  practice  of 
his  time,  and  gives  the  views  of  a  great  English  eighteenth  cen- 
tury judge  as  to  the  way  in  which  statutes  ought  to  be  framed. 

"In  old  times,"  he  said,  "almost  all  the  laws  which  were  de- 
signed to  be  public  Acts,  and  to  continue  as  the  standing  laws  of 
this  Kingdom,  were  first  moved  for,  drawn  up,  and  passed  in  this 
House,  where  we  have  the  learned  judges  always  attending,  and 
ready  to  give  us  their  advice  and  assistance.  From  their  knowl- 
edge and  experience  they  must  be  allowed  to  be  best  able  to  tell 
whether  any  grievance  complained  of  proceeds  from  the  non- 
execution  of  the  laws  in  being,  and  whether  it  be  of  such  a  nature 
as  may  be  redressed  by  a  new  law.  In  the  former  case,  a  new  law 
must  be  always  unnecessary,  and  in  the  latter  it  must  be  ridiculous. 
And  when  by  the  opinion  and  advice  of  the  judges  we  find  that 
neither  of  these  is  the  case,  we  have  their  assistance  whereby  we 
are  enabled  to  draw  up  a  new  law  in  such  a  manner  as  to  render  it 
effectual  and  easy  to  understand.  This  is  the  true  reason  why  in 
former  times  we  had  very  few  laws  passed  in  Parliament,  and  very 
seldom,  if  any,  a  posterior  law  explaining  and  amending  a  former." 

There  might  be  some  difficulty  in  identifying  the  golden 
age  of  legislation  to  which  Lord  Hardwicke  thus  refers, 

1  Harris,  Life  of  Lord  Hardwicke,  III,  58. 


60  THE  MECHANICS  OF  LAW  MAKING 

but  the  practice  which  he  commends  appears  to  have  been 
continued  at  intervals  until  at  least  the  middle  of  the  eigh- 
teenth century.  It  is  to  be  hoped,  in  the  interests  of  judicial 
reputation,  that  our  eighteenth  century  judges  were  not  re- 
sponsible for  the  form  of  much  of  the  copious  and  ill-expressed 
English  legislation  of  that  century. 

Some  Acts  dealing  with  specially  legal  topics  appear,  as 
might  be  expected,  to  have  been  drawn  by  eminent  lawyers. 
Thus  the  Statute  of  Distributions  is  said  to  have  been 
'penned'  by  a  distinguished  civilian,  Sir  Leoline  Jenkins, 
and,  at  a  much  later  date,  the  Fines  and  Recoveries  Act 
and  other  Acts  arising  out  of  the  recommendation  of  the  Real 
Property  Law  Commissions  are  known  to  have  been  drawn 
by  the  great  conveyancer  Mr.  Brodie.  Many  other  statutes 
bear  intrinsic  evidence  of  having  been  the  work  of  convey- 
ancers. 

As  to  the  mode  in  which  the  legislation  of  the  eighteenth 
century  was  prepared,  there  is  little  evidence  available. 
Much  of  it  was  the  work  of  private  members.  Administra- 
tive measures  introduced  by  a  minister  of  the  Crown  may 
presumably  have  been  drawn  by  some  member  of  his  official 
staff,  or  by  some  legal  expert  attached  to,  or  working  for, 
his  department. 

Towards  the  close  of  the  century  William  Pitt  appears 
to  have  made  some  more  definite  and  permanent  arrange- 
ments for  the  preparation  of  measures  for  which  he  was 
responsible. 

I  once  found  in  an  old  blue  book  some  evidence  given  in 
1833  before  a  select  committee  of  the  House  of  Commons 
by  one  William  Harrison.  Mr.  Harrison  said  that  some 
time  before  the  French  Revolution,  when  he  was  a  special 
pleader,  he  was  asked  to  assist  in  preparing  some  measures 


THE  PARLIAMENTARY  COUNSEL  61 

which  William  Pitt  then  had  in  contemplation,  that  since 
that  time  he  had  done  a  great  deal  in  the  way  of  drafting 
government  measures,  and  that  at  the  time  when  he  spoke, 
that  is  to  say,  in  1833,  he  held  the  office  of  parliamentary 
counsel  to  the  Treasury,  and  in  that  capacity  was  expected 
to  draw  bills,  not  only  for  the  Treasury,  but  for  other  govern- 
ment departments. 

Very  little  appears  to  have  been  remembered  about  Mr. 
Harrison  or  his  work,  and  my  impression  is  that  in  giving 
his  evidence  he  exaggerated  the  duties  and  importance  of 
his  work.  The  Acts  which  he  said  he  drew  are  not  master- 
pieces of  draftsmanship.  But  his  evidence  is  of  interest 
for  two  reasons :  first,  because  he  bore  a  title  which  was  sub- 
sequently revived ;  and,  secondly,  —  and  this  is  far  more 
important,  —  because  the  evidence  illustrates  the  dawn  or 
germ  of  government  responsibility  for  parliamentary  legis- 
lation. 

It  must  be  borne  in  mind  that  in  England  the  share  of  the 
executive  government  in  the  work  of  current  legislation  and 
their  reponsibility  for  it  has  enormously  increased  during 
recent  years,  that  is  to  say,  since  1832.  Many  measures 
which  at  the  present  day  could  not  be  carried  except  as  gov- 
ernment measures  were,  in  the  eighteenth  century,  and  in 
the  early  part  of  the  nineteenth  century,  introduced  and 
carried  by  private  members.  Thus,  in  the  history  of  poor 
law  legislation,  the  important  statutes  known  as  "  Gilbert's 
Act "  and  "  Hobhouse's  Act "  were  private  members'  Acts. 
Sir  Charles  Wood,  talking  to  Mr.  Nassau  Senior  about  the 
year  1855,  is  reported  to  have  said :  — 

When  I  was  first  in  Parliament,  twenty-seven  years  ago  [in 
1825]  the  functions  of  the  government  were  chiefly  executive. 
Changes  in  our  laws  were  proposed  by  independent  members,  and 


62  THE  MECHANICS  OF  LAW  MAKING 

carried,  not  as  party  questions,  by  their  combined  action  on  both 
sides.  Now,  when  an  independent  member  brings  forward  a  sub- 
ject it  is  not  to  propose  a  measure  himself,  but  to  call  to  it  the 
attention  of  the  government.  All  the  House  joins  in  declaring 
that  the  present  state  of  the  law  is  abominable,  and  in  requiring 
the  government  to  provide  a  remedy.  As  soon  as  the  government 
has  obeyed,  and  prepared  one,  they  all  oppose  it.  Our  defects  as 
legislators,  which  is  not  our  business,  damage  us  as  administrators, 
which  is  our  business. 

That  is  the  language  of  a  veteran  statesman  who  remem- 
bered the  old  system  and  had  lived  well  into  the  new  system. 
I  call  it  the  new  system,  for  you  must  always  remember 
that  the  Reform  Act  of  1832  is  one  of  the  great  landmarks 
of  English  constitutional  history,  and  that  what  we  are  apt 
to  call  the  eighteenth  century  system  lasted  more  than 
thirty  years  beyond  the  end  of  that  century.  And  the  most 
striking  feature  of  the  change  from  the  old  system  to  the 
new  was  the  extension  of  the  responsibility  of  the  central 
government  in  the  sphere  of  administration  and  still  more 
in  the  sphere  of  legislation. 

The  change  which  came  over  the  functions  and  respon- 
sibilities of  the  executive  government  in  England  during 
the  years  that  followed  the  passing  of  the  Reform  Act  of 
1832  was  reflected  in  the  alterations  which  were  made  in 
the  machinery  for  drafting  and  preparing  government  bills. 
The  Mr.  Harrison  to  whom  I  referred,  and  who  gave  evidence 
in  1833,  seems  to  have  gone  on  drawing  bills  till  1837,  when 
his  office  was  allowed  to  fall  into  abeyance.  At  that  time, 
the  first  year  of  Queen  Victoria's  reign,  it  was  the  Home  Sec- 
retary who  was  usually  responsible  for  initiating  the  most 
important  legislative  measures  of  the  government,  and  the 
Home  Secretary  soon  felt  the  need  of  more  regular  and  sys- 
tematic aid  in  the  preparation  of  bills.  And  so  it  came  to 


THE  PARLIAMENTARY  COUNSEL  63 

pass  that  in  the  year  1837  the  Home  Secretary  of  the  day 
appointed  a  barrister,  Mr.  Drinkwater  Bethune,  to  a  post 
in  which  he  was  charged  with  the  duty  of  preparing  bills 
for  parliament  under  the  direction  of  the  Home  Secretary. 
Mr.  Bethune  subsequently  went  out  to  India  as  member  of 
the  Governor-general's  Council,  and  was  succeeded  in  his 
post  at  the  Home  Office  by  Mr.  Walter  Coulson,  a  man  of 
great  ability  and  very  well  known  in  his  time,  though  now, 
I  fear,  forgotten.  He  had  been  in  his  youth  an  amanuensis 
to  Jeremy  Bentham,  was  a  friend  of  Charles  Lamb  and  Leigh 
Hunt,  and  became  a  very  successful  newspaper  editor  be- 
fore he  abandoned  journalism  for  the  legal  profession  and 
was  called  to  the  bar.  Mr.  Coulson  died  in  1860  and  was 
in  that  year  succeeded  in  his  post  by  Mr.  Henry  Thring, 
who  was  afterwards  raised  to  the  peerage  as  Lord  Thring, 
and  who,  as  some  of  you  probably  know,  acquired  great 
fame  as  a  parliamentary  draftsman.  Mr.  Thring,  as  he 
then  was,  appears  to  have  drawn,  as  Home  Office  counsel, 
all  the  most  important  of  the  bills  which  were  introduced 
into  parliament  on  the  responsibility  of  the  cabinet.  His 
services  were  often  placed  at  the  disposal  of  other  depart- 
ments of  the  government.  But  these  departments  were 
not  bound  to  employ  him,  and  they  often  preferred  to  employ 
independent  counsel  to  draw  their  bills,  or  to  get  them  drawn 
by  their  own  departmental  officers  without  legal  aid.  Now, 
the  result  of  this  system,  or  lack  of  system,  was  very  unsatis- 
factory. The  cost  was  great;  for  barristers  employed  by 
the  job  were  entitled  to  charge  fees  on  the  scale  customary 
in  private  parliamentary  practice.  There  was  no  security 
for  uniformity  of  language,  style,  or  arrangement  in  laws 
which  were  intended  to  find  their  place  in  a  common  statute 
book.  There  was  no  security  for  uniformity  of  principle 


64  THE  MECHANICS  OF  LAW  MAKING 

in  measures  for  which  the  government  was  collectively  re- 
sponsible. Different  departments  introduced  inconsistent 
bills,  and  there  was  no  adequate  provision  by  which  the 
prime  minister,  or  the  cabinet  as  a  whole,  could  exercise 
effective  control  over  measures  fathered  by  individual 
ministers.  And,  lastly,  there  was  no  check  on  the  financial 
consequences  of  legislation.  There  was  nothing  to  prevent 
any  minister  from  introducing  a  bill  which  would  impose 
a  heavy  charge  on  the  Treasury,  and  upset  the  chancellor 
of  the  exchequer's  budget  for  the  year. 

These  were  the  defects  that  impressed  the  acute  and 
frugal  mind  of  Robert  Lowe  (afterwards  Lord  Sherbrook) 
when  he  was  chancellor  of  the  exchequer  in  1869.  The 
remedy  which  he  devised  was  the  establishment  of  an  office 
which  should  be  responsible  for  the  preparation  of  all  gov- 
ernment bills,  and  which  should  be  subordinate  to  the  Treas- 
ury, and  thus  be  brought  into  immediate  relation,  not  only 
with  the  chancellor  of  the  exchequer,  who  was  specially 
interested  in  the  financial  aspects  of  legislation,  but  also 
with  the  first  lord  of  the  Treasury,  who  was  usually  prime 
minister.  That  is  how  the  present  office  of  parliamentary 
counsel  to  the  Treasury  was  started.  Its  establishment 
involved  no  legislation,  merely  a  Treasury  minute,  and  an 
application  to  the  House  of  Commons  to  vote  the  necessary 
money.  Mr.  Thring  was  made  head  of  the  office,  with  the 
title,  revived  for  that  purpose,  of  parliamentary  counsel 
to  the  Treasury,  and  he  was  given  permanent  assistance 
and  a  Treasury  allowance  for  office  expenses  and  for  such 
outside  legal  assistance  as  he  might  require.  He  selected 
as  his  assistant  a  young  barrister,  Mr.  Jenkyns,  who  after- 
wards succeeded  him,  and  there  is  no  indiscretion  in  my  say- 
ing that  this  Sir  Henry  Jenkyns,  as  he  afterwards  became, 


THE  PARLIAMENTARY  COUNSEL  65 

is  the  gentleman  who  was  referred  to  in  such  eulogistic  terms 
—  eulogistic  but  not  a  bit  beyond  his  merits  —  by  Mr.  Bryce 
in  the  statement  which  he  made  before  a  committee  of  Con- 
gress last  year. 

The  constitution  of  the  office,  as  established  in  1869,  has 
remained  ever  since  without  any  material  alteration  to  the 
present  time.  The  parliamentary  counsel  and  his  assistant 
are  now  called  the  first  and  second  parliamentary  counsel, 
and  the  status  and  salaries  of  the  two  counsel  have  been  more 
nearly  equalised  with  each  other.  The  first  parliamentary 
counsel  now  draws  a  maximum  salary  of  £2500  (say  $12,500), 
the  junior  a  maximum  salary  of  £2000  (say  $10,000),  but 
that  is  about  all  the  change  that  has  been  made.  The 
permanent  staff  consists  of  the  two  counsel,  with  three  short- 
hand-writing clerks,  an  office  keeper,  and  a  boy  messenger  or 
office  boy,  and  these  together  run  what  may  be  called  the 
legislative  workshop.  Two  barristers  usually  attend  the 
office  regularly  as  assistants  of  the  two  parliamentary  coun- 
sel. But  their  attendance  is  voluntary ;  they  are  under  no 
permanent  engagement ;  they  are  paid  by  fees  in  accordance 
with  the  work  done  by  them ;  they  have  their  own  chambers, 
and  are  allowed  to  take  outside  work.  Such  other  legal 
assistance  as  is  required  is  given  by  barristers  practising  at 
Lincoln's  Inn  or  the  Temple.  The  estimate,  or,  as  you 
would  call  it,  the  appropriation,  for  the  parliamentary  coun- 
sel's office,  for  the  current  year,  1913-1914,  was  £5596,  with 
an  additional  £2100  for  barristers  assisting  the  parliamen- 
tary counsel  and  £10  for  minor  expenses,  about  £7700  (say 
$38,500)  in  all. 

Now,  that  being  the  staff  of  the  office,  what  is  the  work 
that  it  is  supposed  to  do?  Under  the  minute  of  1869  the 
parliamentary  counsel  was  to  settle  or  draw  all  such  govern- 


66  THE  MECHANICS  OF  LAW  MAKING 

ment  bills  as  he  might  be  required  by  the  Treasury  to  settle 
or  draw.  The  duties  of  the  office  did  not  at  first  extend  to 
all  government  bills.  There  are  still  separate  draftsmen  for 
Scottish  and  Irish  bills,  though  bills  relating  to  Ireland  have 
often  been  of  such  great  political  importance  and  have  raised 
such  serious  financial  questions  that  a  large  share,  perhaps 
the  larger  share,  of  the  responsibility  for  preparing  them  has 
usually  devolved  on  the  English  office.  When  I  first  joined 
the  office,  the  budget  bill  and  other  revenue  bills  of  the  year 
were  drawn  by  officers  of  the  revenue  departments,  and  I 
well  remember  a  conversation  which  I  had  with  Mr.  Goschen, 
who  was  chancellor  of  the  exchequer  at  the  time  when 
the  responsibility  for  putting  them  into  shape  was  transferred 
to  the  parliamentary  counsel's  office,  in  which  I  then  held 
the  second  post.  This  was  some  time  in  the  early  nineties. 
Mr.  Goschen  told  me,  or  reminded  me,  that  until  recent 
times  the  House  of  Commons  used  to  discuss  the  budget  of 
the  year  on  the  financial  resolutions  proposed  by  the  chan- 
cellor of  the  exchequer.  And  they  did  not  criticise  the 
language  of  the  resolutions ;  they  looked  merely  to  the  sub- 
stance as  explained  by  the  chancellor,  and  argued  for  or 
against  the  financial  scheme  as  a  whole,  or  for  or  against  the 
propriety  of  particular  taxes.  As  to  the  bills  based  on  the 
resolutions,  bills  which  were  usually  drawn  in  very  technical 
language,  hardly  any  one  read  them  or  tried  to  amend  them. 
"  But  now/'  he  said,  "  members  have  taken  to  move  amend- 
ments or  clauses  in  these  bills ;  and  I  really  must  have  the 
bills  drawn,  if  possible,  in  less  technical  language,  at  all 
events  in  language  which  it  is  easier  both  for  myself  and  for 
the  average  member  of  Parliament  to  understand.  There- 
fore I  am  afraid  we  must  impose  on  your  office  the  responsi- 
bility for  putting  these  bills  also  into  shape."  The  respon- 


THE  PARLIAMENTARY  COUNSEL  67 

sibility  was  imposed,  and  a  very  serious  responsibility  it  has 
been,  as  will  be  realised  by  any  one  who  considers  Sir  William 
Harcourt's  Finance  Act  of  1894,  and  Mr.  Lloyd  George's 
still  more  contentious  Finance  Act  of  1909-1910,  and  the 
swarm  of  amendments  by  which  these  measures  were  assailed 
in  their  passage  through  the  House  of  Commons,  amend- 
ments all  of  which  had  to  be  studied  and  dealt  with  by  the 
unfortunate  draftsman  of  the  measure.  You  may  take  it, 
then,  that,  under  present  arrangements,  the  parliamentary 
counsel's  office  is  responsible  for  the  preparation  of  all 
government  bills,  with  a  very  few  exceptions. 

Under  the  Treasury  minute  of  1869  the  instructions  for 
every  bill  which  was  to  be  drawn  by  the  parliamentary 
counsel's  office  were  to  be  in  writing,  and  were  to  be  sent  by 
the  head  of  the  government  department  principally  con- 
cerned to  the  parliamentary  counsel  through  the  Treasury, 
being  the  department  to  which  the  parliamentary  counsel 
is  immediately  responsible.  These  directions  are  still  ob- 
served. The  form  of  the  instructions  which  the  parliamen- 
tary counsel  usually  receives  is  as  follows :  — 

TREASURY  CHAMBERS. 
SIR, 

I  am  directed  by  the  Lords  Commissioners  of  His  Majesty's 
Treasury  to  transmit  to  you  herewith  a  copy  of  a  Letter  from  the 
(Home  Office)  dated  containing  instructions  for  the 

preparation  of  a  Bill  to  and  I  am  to 

request  that  you  will  place  yourself  in  communication  with  the 
(Home  Office)  with  a  view  to  drawing  the  same. 
I  am, 
Sir, 

Your  obedient  Servant, 

A.  B. 
THE  PARLIAMENTARY  COUNSEL. 


68  THE  MECHANICS  OF  LAW  MAKING 

You  will  see  that  the  instructions  thus  given  are  of  a  general 
and  indefinite  character.  They  may  or  may  not  be  accom- 
panied by  more  specific  instructions  from  the  minister  or 
department  principally  concerned,  in  the  form  either  of  a 
short  note,  or  of  reference  to  the  report  of  a  commission  or 
committee,  or  of  papers  showing  the  circumstances  which 
appear  to  render  legislation  expedient.  The  procedure 
adopted  on  receipt  of  the  instructions  varies  according  to 
the  character  and  importance  of  the  measure.  There  is 
usually  a  preliminary  conference  either  with  the  minister 
who  is  to  take  charge  of  the  bill,  or  with  the  permanent  head 
of  his  department,  or  with  both.  In  the  case  of  minor  de- 
partmental measures,  the  instructions  first  received  may 
suffice  for  the  immediate  preparation  of  a  draft  much  in  the 
form  in  which  it  will  be  submitted  to  Parliament  as  a  bill. 
In  the  case  of  more  important  and  elaborate  measures,  the 
stage  of  gestation  is  naturally  longer.  The  draftsman  often 
has  to  prepare  memoranda  stating  the  existing  law,  tracing 
the  history  of  previous  legislative  enactments  or  proposals, 
or  raising  the  preliminary  questions  of  principle  which  have 
to  be  settled.  The  first  draft  which  he  prepares  may  take 
the  form  of  a  rough  'sketch'  or  of  'heads  of  a  bill/  The 
original  draft,  whether  in  the  form  of  a  bill  or  otherwise,  is 
gradually  elaborated  after  repeated  conferences  with  the 
minister,  and  with  those  whom  he  takes  into  his  confidence. 

A  measure  will  often  affect  more  than  one  of  the  govern- 
ment departments;  and  in  those  cases  the  departments 
affected  will  have  to  be  consulted.  The  responsibility  for 
seeing  that  this  is  done  rests,  primarily,  with  the  initiating 
department ;  but,  as  a  matter  of  convenience,  the  necessary 
communications  are  often  made  by  the  draftsman.  In 
particular,  the  attention  of  the  Treasury  has  to  be  directed  to 


THE  PARLIAMENTARY  COUNSEL  69 

any  legislative  proposal  involving  expenditure  of  public 
money ;  and  the  parliamentary  counsel,  as  an  officer  of  the 
Treasury,  is  charged  with  responsibility  for  seeing  that  this 
duty  is  not  overlooked.  When  there  is  a  conflict  between 
the  views  of  different  departments  on  a  subject  of  legislation, 
the  parliamentary  counsel,  from  his  neutral  position,  may 
often  find  it  possible  to  suggest  a  mode  of  harmonising  them. 
And  his  general  responsibility  for  all  government  bills  en- 
ables him  to  guard  against  the  risk  of  one  department  bringing 
forward  proposals  inconsistent  with  those  brought  forward 
by  another. 

When  the  draft  of  a  bill  has  been  finally  or  approximately 
settled,  it  is  usually  circulated  to  all  the  members  of  the 
cabinet  for  their  information  before  introduction  into  Parlia- 
ment ;  and  the  parliamentary  counsel  supplies  the  executive 
department  concerned  with  a  sufficient  number  of  copies  for 
this  circulation. 

So  long  as  a  bill  remains  in  the  form  of  a  draft,  it  can  be 
altered  and  reprinted  as  often  as  convenience  requires,  and 
the  parliamentary  counsel  employs  the  services  of  the  King's 
printers  for  this  purpose.  But  as  soon  as  a  bill  has  been 
introduced  into  either  House  of  Parliament  and  printed  by 
order  of  that  House,  it  passes  out  of  his  control.  It  can 
then  only  be  altered  by  the  authority  of  the  House,  and 
copies  of  the  bill,  in  its  original  or  its  amended  form,  can 
only  be  supplied  in  the  same  way  as  other  parliamentary 
documents. 


V 
DUTIES  OF  A  GOVERNMENT  DRAFTSMAN 

You  will  see  from  what  I  have  said  that  the  preliminary 
labours  of  the  draftsman  may,  in  the  case  of  an  important 
measure,  be  very  considerable.  He  has  to  get  up  his  brief 
as  a  barrister  has  to  get  up  his  brief  before  arguing  a  heavy 
case,  and  he  has  not  only  to  master  his  brief,  but,  to  a  great 
extent,  to  collect  and  put  into  shape  the  materials  for  it. 
He  has  to  get  up  his  law  and  to  get  up  his  facts,  and  his 
labour  may  involve  a  good  deal  of  historical  research,  such 
as  has  to  be  undertaken  by  a  barrister,  either  personally  or 
through  his  "  devils,"  before  arguing  a  heavy  case,  involving, 
say,  questions  of  ancient  property  law,  or  questions  on  the 
construction  of  a  series  of  treaties,  or  questions  on  the  con- 
struction of  a  series  of  complicated  statutes.  For  informa- 
tion about  the  facts  constituting  the  case  to  be  dealt  with  by 
legislation,  the  government  draftsman  would,  in  England, 
naturally  rely  mainly  on  the  executive  department  prin- 
cipally concerned.  The  officers  of  that  department  would 
supply  him  with  the  necessary  information  or  tell  him  where 
it  is  to  be  found,  or  at  least  put  him  on  the  track  of  finding  it. 
A  good  deal  of  this  information  would  be  in  the  possession  of 
the  department  itself,  but  a  good  deal  of  it  would  usually  be 
found  in  what  we  call  'blue  books.'  Most  of  the  important 
legislation  in  England  is  preceded  by  an  official  inquiry,  and 
is  based,  more  or  less,  on  the  reports  and  recommendations 
of  some  commission  or  committee.  These  official  inquiries 
are  usually  held  either  by  a  royal  commission,  or  by  a  par- 

70 


DUTIES  OF  A  GOVERNMENT  DIU^TSMAN       71 

liamentary  committee,  or  by  a  departmental  committee.  A 
royal  commission  is  constituted,  and  its  members  are  ap- 
pointed, by  the  Crown,  on  the  advice  of  one  of  the  ministers 
of  the  Crown,  but  usually  in  response  to  parliamentary  pres- 
sure for  inquiry  into  a  particular  subject  with  a  view  to  legis- 
lation, or  to  executive  action.  A  parliamentary  committee 
is  appointed,  and  its  members  are  selected,  by  one  of  the 
two  Houses  of  Parliament,  or  there  maybe  a  joint  committee 
of  the  two  houses.  In  any  case  it  consists  exclusively  of 
members  of  Parliament.  A  departmental  committee  is 
appointed  by  the  political  head  of  the  government  depart- 
ment concerned,  and  consists  of  such  persons,  officials  or 
others,  as  he  may  select.  Its  functions  and  powers  are 
much  the  same  as  those  of  a  royal  commission,  but  it  is  sup- 
posed to  be  a  rather  less  dignified  body.  A  parliamentary 
committee  can  compel  the  attendance  of  witnesses  and  the 
production  of  documents,  and  can  examine  witnesses  on 
oath.  A  royal  commission  or  departmental  committee  does 
not  possess  these  powers  unless  they  are  expressly  conferred 
by  a  special  Act.  On  the  other  hand,  a  parliamentary  com- 
mittee can  only  sit  when  the  House  by  which  it  is  appointed  is 
sitting.  It  comes  to  an  end  with  the  expiration  of  the  session, 
and  must  be  appointed  afresh  if  its  labours  are  to  be  renewed 
in  a  following  session,  whilst  a  royal  commission  or  depart- 
mental committee  can  sit  until  its  labours  are  concluded. 
The  power  to  compel  attendance  and  to  examine  on  oath  is 
of  less  importance  than  it  might  seem,  for  in  inquiries  before 
parliamentary  committees  witnesses  are  usually  willing  to 
attend  and  supply  information,  and  the  administration  of  an 
oath  is,  as  a  rule,  not  considered  necessary.1 

1  As  to  royal  commissions,  see  the  article  by  Professor  Harrison  Moore 
of  Melbourne  in  the  Columbia  Law  Review  for  June,  1913. 


72  THE  MECHANICS  OF  LAW  MAKING 

The  reports  of  these  commissions  and  committees  are 
made  parliamentary  papers  by  being  formally  presented  to 
one  or  both  Houses  of  Parliament,  and  constitute  part,  but 
not  the  whole,  of  that  formidable  mass  of  official  literature 
which  is  popularly  known  under  the  name  of  blue  books, 
which  is  so  frequently  used  as  an  arsenal  for  arguments  in 
political  discussions,  and  into  the  bowels  of  which  the  legis- 
lator, or  would-be  legislator,  and  his  assistants  have  so  fre- 
quently to  dig.  When  I  was  in  the  parliamentary  counsel's 
office  the  indexing  of  this  mass  of  blue  books  was  not  quite 
satisfactory,  and  it  often  took  one  a  good  deal  of  time  to 
find  out  what  one  wanted.  But  it  has  now  been  put  on  a 
satisfactory  basis.  There  is  a  collective  index  to  the  blue 
books  for  each  of  the  two  periods  1801  to  1852  and  1853  to 
1899,  an  index  for  each  decennial  period,  and  an  index  for 
each  session. 

I  mention  these  details  because  in  the  papers  which  have 
been  supplied  to  me  there  is  a  great  deal  about  bureaus  of 
legislation  or  reference  bureaus,  and  I  thought  you  might 
like  to  know  something  about  the  kind  of  information  bearing 
on  legislative  projects  which  is  ordinarily  available  to  the 
legislator  in  England.  Of  course,  in  our  country,  as  in 
yours,  large  amounts  of  information  are  supplied  by  volun- 
tary and  unofficial  agencies  representing  persons  and  bodies 
interested  in  the  subject  about  which  it  is  proposed  to  legis- 
late, and  any  member,  be  he  a  minister  or  a  private  member, 
who  introduces  or  desires  to  introduce  a  bill,  or  to  take  an 
active  part  in  supporting  or  opposing  it,  is  sure  to  find  him- 
self deluged  with  literature,  more  or  less  relevant,  and  more 
or  less  valuable. 

But  we  have  not  in  England  any  official  agency  corre- 
sponding to  the  legislative  reference  bureaus  which  have 


DUTIES  OF  A  GOVERNMENT  DRAFTSMAN       73 

been  established  or  are  proposed  to  be  established  in  several 
of  your  States.  Our  view  is  that  information  of  the  kind 
which  these  bureaus  supply  should  be  supplied  mainly  — 
mainly  but  not  wholly  —  by  libraries  and  librarians.  We 
have  several  excellent  libraries  which  supply  such  informa- 
tion. There  are  libraries  attached  to  the  principal  depart- 
ments of  the  executive  government,  containing  information 
on  the  subjects  falling  specially  within  the  experience  of 
that  department.  For  instance,  on  labour  questions  you 
would  find  much  information  in  the  libraries  of  the  Home 
Office  and  the  Board  of  Trade.  For  information  about 
India  or  the  Colonies  you  might  go  to  the  library  of  the 
India  Office  or  of  the  Colonial  Office.  The  Board  of  Educa- 
tion has  an  admirable  educational  library.  And  so  with  other 
departments.  There  are  also  libraries  attached  to  each 
of  the  two  Houses  of  Parliament,  the  House  of  Lords  and 
the  House  of  Commons,  but  each  of  these  libraries  is  accessible 
only  to  members  or  officers  of  the  House  to  which  it  belongs. 
Then  there  are  useful  libraries  attached  to  private  or  semi- 
private  institutions,  such  as  the  Inns  of  Court,  the  Colonial 
Institute,  and  the  London  School  of  Economics  and  Political 
Science. 

The  journals  of  the  English  Society  of  Comparative  Legis- 
lation supply  much  information  about  the  course  of  current 
legislation  in  different  parts  of  the  world.  From  sources 
such  as  these,  and  with  the  help  of  individuals  or  private 
organisations  specially  interested  in  a  particular  subject  of 
legislation,  a  legislator  or  intending  legislator  can,  in  my 
country,  usually  obtain  a  vast  amount  of  information  on  the 
subject  with  which  he  proposes  to  deal.  In  fact,  if  he  is  a 
public  man,  he  runs  a  serious  risk  of  being  'snowed  under '  by 
the  pamphlets,  memoranda,  and  other  documents  which 


74  THE  MECHANICS  OF  LAW  MAKING 

pour  in  upon  him  from  various  quarters.  We  have  not, 
however,  in  London  any  central  library  accessible  to  the 
public  generally,  conveniently  situated,  and  specially  adapted 
to  the  needs  of  the  legislator  or  administrator.  We  have 
nothing  on  the  scale  of  your  admirable  Library  of  Congress 
at  Washington,  an  institution  for  which  I  often  envy  you. 

I  should  like  to  say  something  more  about  the  conferences 
to  which  I  have  referred,  conferences  which  take  place  be- 
fore and  during  the  preparation  of  a  bill,  and  also  afterwards 
during  its  progress  through  the  legislature,  conferences  in 
which  the  draftsman  takes  part.  I  look  back  on  some  of 
these  conferences  as  among  the  most  interesting  and  instruc- 
tive experiences  of  my  official  life.  One  might  have,  if  the 
subject  were  important,  and  if  the  minister  were  capable 
and  determined  to  put  his  back  into  his  subject,  and  if  time 
were  available  —  it  must  be  admitted  that  all  these  con- 
ditions were  not  always  present  —  one  might  have  a  big 
subject  thoroughly  discussed  from  many  points  of  view. 
First  there  would  be  the  minister  himself,  who  would  be  apt 
to  look  at  it,  and  would  be  specially  qualified  to  look  at  it, 
from  the  political  point  of  view.  He  would  be  in  the  best 
position  to  know  from  what  quarters  and  on  what  grounds 
support  might  be  expected,  from  what  quarters  and  on  what 
grounds  criticism,  attack,  or  opposition  was  to  be  feared, 
what  was  likely  to  be  the  relative  strength  of  his  supporters 
and  his  opponents,  and  what  means  of  persuasion  and  con- 
ciliation would  be  available  and  useful.  Then  there  would 
be  the  permanent  head  of  the  department,  the  government 
civil  servant,  who  under  our  system  does  not  change  with 
political  changes.  His  special  business  would  be  to  look  at 
the  proposals  from  an  administrative  point  of  view.  Would 
they  work  ?  By  what  agencies  could  they  be  worked  ?  What 


DUTIES  OF  A  GOVERNMENT  DRAFTSMAN       75 

would  they  cost?  How  was  the  cost  to  be  met?  These, 
and  a  thousand  other  questions  of  a  similar  kind,  he  would 
have  to  meet,  and  he  would  have  to  give  reasons  for  his 
opinions  and  to  fortify  his  reasons  with  facts. 

Lastly,  there  would  be  the  draftsman,  whose  special  duty 
would  be  to  express  in  appropriate  legislative  language  the 
conclusions  arrived  at  by  the  minister  in  charge  of  the  meas- 
ure. But,  judging  from  my  own  experience,  he  was  usually 
expected  to  do  a  good  deal  more  than  that.  He  would, 
perhaps,  at  the  first  stage  of  all,  have  got  up  the  history  of 
the  subject,  and  would  know  what  previous  attempts  at  legis- 
lation about  it  had  been  made,  whether  and  how  far  they 
had  succeeded,  whether  and  how  far  they  had  failed,  and  if 
they  had  failed,  why  they  had  failed.  He  might  know  some- 
thing about  the  course  of  legislation  not  only  in  other  times 
but  in  other  countries,  and  might  have  something  to  say 
about  the  lessons  to  be  derived  from  successes  or  failures 
elsewhere.  If  he  was  an  old  hand  at  the  work,  a  good  deal 
of  knowledge  about  previous  legislative  attempts,  successes, 
and  failures  would  have  fallen  within  the  range  of  his  personal 
experience.  It  might  have  been  his  duty  previously,  it 
might  be  his  duty  then,  a  duty,  painful  or  otherwise,  accord- 
ing to  his  temperament,  to  prick  legislative  bubbles,  and  to 
damp  the  ardour  of  ambitious  legislators  by  asking  incon- 
venient but  necessary  questions  about  the  precise  mode  in 
which  those  proposals  were  to  be  carried  into  effect.  More- 
over, as  I  have  said  before,  he  might  be  able  to  throw  light 
on  the  proposals  from  other  points  of  view,  and  to  guard 
against  conflicts  or  inconsistencies  between  the  policy  or 
proposals  of  different  branches  of  the  government.  Thus  it 
may  be  his  duty  to  inform,  to  advise,  to  criticise,  or  to  suggest. 
But  decision,  and  responsibility  for  decision,  rest  with  the 


76  THE  MECHANICS  OF  LAW  MAKING 

minister  and  with  him  alone.  The  draftsman  is  merely  one 
of  the  experts  whom  the  minister  calls  in  to  help  him.  It  is 
not  on  his  shoulders  that  responsibility  falls,  except  responsi- 
bility to  the  minister  whom  he  serves ;  it  is  not  with  him  that 
the  last  word  remains.  Government  by  experts  is  not  an 
ideal  of  which  I  am  enamoured.  But  government  by  experts 
is  one  thing,  government  with  the  aid  of  experts  is  another. 
And  in  legislation,  as  in  other  branches  of  government,  to 
seek  the  aid  of  experts,  and  to  keep  them  in  their  proper 
places,  is  desirable  and  wise. 

At  conferences  such  as  I  have  described,  other  experts, 
official  or  unofficial,  besides  the  draftsman  and  the  permanent 
civil  servant  representing  the  department  concerned,  are 
often  called  in.  And  sometimes  the  draft,  if  it  is  of  an  im- 
portant character,  is  referred  to  the  consideration  of  a  cabinet 
committee,  where  those  who  are  privileged  to  attend  may 
occasionally  hear  a  minister  and  his  proposals  criticised  by 
his  colleagues  with  a  frankness  which,  to  the  uninitiated,  is 
surprising. 

Such  are  the  duties  of  the  government  draftsman  before 
the  form  of  a  bill  is  finally  settled,  and  before  the  bill  is  printed 
and  published  by  order  of  the  House  in  which  it  is  introduced. 

Of  course,  however,  his  labours  do  not  end  at  this  stage. 
The  publication  of  a  bill  brings  suggestions  for  amendment, 
which  may  be  forwarded  by  the  minister  or  department  for 
consideration.  After  the  second  reading  of  the  bill  these 
suggestions  take  the  form  of  amendments  on  the  notice 
paper,  which  have  to  be  daily  scrutinised.  In  anticipa- 
tion of  the  committee  stage,  the  draftsman  often  finds  it 
prudent  to  prepare,  for  the  purpose  of  refreshing  his  own 
memory,  and  for  the  use  of  the  minister  in  charge,  notes  on 
the  several  clauses,  explaining  the  origin  and  object  of  the 


DUTIES  OF  A  GOVERNMENT  DRAFTSMAN       77 

proposals  which  they  embody,  referring  to  the  precedents  on 
which  reliance  can  be  placed,  and  noting  the  arguments  which 
may  be  used  or  which  may  have  to  be  met.  As  the  committee 
stage  approaches,  and  when  it  has  been  reached,  the  amend- 
ments become  the  subject  of  discussion  with  the  minister, 
and  alterations  or  consequential  amendments  have  to  be 
framed.  If  the  bill  goes  to  a  committee  of  the  whole  House 
or  to  one  of  the  grand  committees,  the  draftsman  may  be 
expected  to  attend  the  debate,  and  give  such  assistance  as  he 
can  in  the  way  of  framing  or  modifying  amendments,  or 
meeting  points. 

Where  a  bill  is  much  amended  in  committee,  it  requires 
minute  examination  after  the  committee  stage,  for  the  pur- 
pose of  seeing  whether  there  are  any  errors  to  be  corrected, 
inconsistencies  to  be  removed,  or  consequential  alterations 
to  be  made ;  and  amendments  have  to  be  framed  for  inser- 
tion at  a  later  stage.  Notes  also  have  to  be  written  on  va- 
rious points ;  and  the  literature  which  thus  gathers  round  a 
bill  often  attains  to  formidable  dimensions. 

In  order  to  explain  these  proceedings  more  fully  I  ought 
to  touch  on  some  of  the  differences  between  legislative  pro- 
cedure in  the  House  of  Commons  at  Westminster,  and  legis- 
lative procedure  in  Congress  at  Washington.  And  in  doing 
so,  I  will  deal  only  with  what  are  called  in  England  public 
bills,  with  which  alone  the  government  draftsman  deals, 
and  not  with  private  bills,  with  which  he  has  no  concern. 
In  Congress,  as  I  understand,  the  first  and  second  readings  of 
a  bill  are  merely  formal  stages,  and  after  second  reading  the 
bill  is  sent  by  direction  of  the  Speaker  to  the  appropriate 
committee,  that  is  to  say,  to  that  one  of  the  standing  com- 
mittees of  Congress  that  deals  with  the  class  of  subjects  to 
which  the  bill  relates.  This  is  not  the  procedure  at  West- 


78  THE  MECHANICS  OF  LAW  MAKING 

minster.  Under  a  recent  standing  order  of  the  House  of 
Commons  almost  any  public  bill  can  be  presented  to  the 
House,  as  a  bill  always  could,  to  the  House  of  Lords,  without 
any  previous  opportunity  for  debate  or  division.  The  only 
preliminary  required  is  formal  notice  of  intention  to  present 
on  a  particular  day.  The  few  exceptions  relate  to  cases 
where  the  introduction  of  a  bill  has  to  be  preceded  by  and 
based  upon  a  preliminary  financial  resolution.  This  form  of 
introduction  —  presentation,  followed  as  a  matter  of  course 
by  first  reading  —  is  adopted  in  the  case  of  the  vast  majority 
of  public  bills.  But  usually  in  the  case  of  the  more  important 
government  bills,  and  occasionally  in  the  case  of  private 
members'  bills  also,  the  old  procedure  is  still  followed.  The 
member,  be  he  a  minister  or  a  private  member,  moves  for 
leave  to  introduce  the  bill,  and  on  that  motion  debate  and 
division  can  take  place.  This  procedure  enables  the  intro- 
ducer of  a  bill  to  describe  in  popular  language  the  nature  of 
his  proposals  and  thus  prepare  the  ground  for  the  study  of 
the  bill  itself,  which  is  probably  expressed  in  more  or  less 
technical  language.  On  the  other  hand,  it  invites  a  dis- 
cussion which  must  be  incomplete  and  unsatisfactory,  be- 
cause the  text  of  the  bill  is  not  within  the  knowledge  of  those 
who  wish  to  criticise  its  provisions. 

But  whatever  be  the  comparative  advantages  and  disad- 
vantages of  the  procedure  —  and  in  the  opinion  of  many  the 
disadvantages  predominate  —  it  is  a  survival  from  ancient 
times  and  retains  some  quaint  features.  If  the  House,  on 
the  motion  of  a  member,  makes  an  order  giving  him  leave  to 
introduce  a  particular  bill,  the  Speaker  addresses  him  and 
asks  him  '  Who  will  prepare  and  bring  in  the  bill  ? '  He  reads 
out  a  list  of  names  and  then  walks  down  to  the  bar  of  the 
House  and  is  again  called  by  the  Speaker.  Thereupon  he 


DUTIES  OF  A  GOVERNMENT  DRAFTSMAN       79 

walks  up  the  floor  of  the  House  and  hands  the  bill,  or  rather 
a  'dummy'  which  represents  it,  to  the  clerk.  These  formali- 
ties only  occupy  a  few  seconds,  but  they  represent  in  a  com- 
pressed and  symbolical  form,  proceedings  which  in  the  seven- 
teenth century  may  have  occupied  days  or  weeks.  In  those 
days,  when  the  House  had  come  to  the  conclusion  that  a  case 
for  legislation  had  been  made  out,  some  member  would  under- 
take, with  the  help  of  colleagues  whom  he  would  name,  to 
prepare  the  necessary  measure.  Thereupon  he  would  go  off 
to  the  Temple  or  Lincoln's  Inn,  or  some  other  convenient 
place,  and,  with  the  help  of  his  friends  and  advisers,  labori- 
ously 'pen'  the  preamble  and  clauses  of  his  bill.  He  might 
take  some  time  in  doing  so,  and  not  until  the  process  was 
finished  and  the  bill  was  complete  in  manuscript  form  would 
he  appear  with  it  at  the  bar  of  the  House.  Now  he  goes 
straight  from  his  seat  to  the  bar,  and  then  marches  up  to  the 
table,  carrying  with  him  the  "  dummy,"  which  contains  only 
the  title  of  the  bill,  whilst  the  text  of  the  bill  may  be  still 
far  from  its  final  form  and  indeed  may  be  non-existent. 

Nowadays,  whether  a  member  adopts  the  new  or  the  old 
form  of  procedure,  whether  he  presents  a  bill  after  notice,  or 
introduces  it  after  having  obtained  an  order  giving  him  leave 
to  do  so,  he  effects  the  introduction  by  bringing  to  the  table 
of  the  House  where  the  clerks  sit,  a  document  which  is  sup- 
posed to  be  his  bill,  but  which  is  really  a  "dummy"  or  sheet 
of  paper  supplied  to  him  at  the  public  bill  office,  and  contain- 
ing the  title  of  the  bill,  the  member's  name,  and  the  names  of 
any  other  members  who  wish  to  appear  as  supporting  him  or 
joining  with  him  in  presenting  the  bill.  The  clerk  at  the 
table  reads  out  the  title  of  the  bill,  and  it  is  then  supposed 
to  have  been  read  a  first  time.  A  formal  order  is  made  for 
printing  it,  and  a  day  is  fixed  for  its  second  reading.  There 


80  THE  MECHANICS  OF  LAW  MAKING 

was  a  time  when  those  so-called  " readings"  were  realities. 
The  Speaker  would  explain  from  notes  or  a  "breviate"  sup- 
plied to  him  the  general  nature  of  the  proposals  to  be  brought 
before  the  House,  and  the  bill  itself  would  probably  be  read  in 
full,  at  later  stages,  by  the  clerk  at  the  table  of  the  House. 
Nowadays  the  "readings"  are  merely  stages  in  the  progress 
of  a  bill  through  the  House.  The  first  reading  is  a  mere 
formality.  When  the  question  is  put  that  the  bill  be  read  a 
second  time  an  opportunity  is  afforded  for  discussing  its 
general  principles  as  distinguished  from  its  details.  If  the 
House  signifies  its  approval  of  these  principles,  the  bill  is 
supposed  to  be  read  a  second  time,  and  then  follows  what  is 
called  the  committee  stage.  Under  the  present  rules,  when 
a  bill  has  been  read  a  second  time  it  is  sent  to  one  of  the 
standing  committees  on  bills,  unless  it  falls  under  certain 
exceptions,  or  the  House  makes  an  order  that  it  be  considered 
by  some  other  kind  of  committee. 

There  are  four  of  these  standing  committees.  One  of 
them  is  for  the  consideration  of  public  bills  relating  exclu- 
sively to  Scotland,  and  must  include  all  the  members  repre- 
senting Scottish  constituencies.  The  other  three  are  con- 
stituted by  the  committee  of  selection,  which  is  one  of  the 
committees  appointed  for  each  session  by  the  House,  and  the 
same  committee  of  selection  also  reinforces  the  committee  on 
Scottish  bills  by  adding  to  it  some  other  members.  The 
maximum  number  of  each  standing  committee  is  eighty.  The 
minimum  number  is  sixty,  and  the  quorum  for  business  is 
twenty. 

If  a  bill  does  not  go  to  a  standing  committee,  it  usually 
goes  to  what  is  called  a  committee  of  the  whole  House,  but 
is  really  the  House  itself,  transacting  its  business  in  a  less 
formal  manner,  with  the  Speaker's  chair  vacant,  and  sitting 


DUTIES  OF  A  GOVERNMENT  DRAFTSMAN       81 

under  the  presidency  of  a  chairman,  who  occupies  the  chair 
at  the  table  which  is  occupied  by  the  clerk  of  the  House  when 
the  Speaker  is  present.  These  so-called  committees  of  the 
whole  House,  corresponding  to  what  are  called  "Committees 
of  the  whole"  in  the  United  States,  came  into  existence  at 
the  beginning  of  the  seventeenth  century.  The  more  im- 
portant bills  were  then  sent  to  large  committees,  and  as  it 
was  difficult  to  obtain  attendance  at  these  committees,  orders 
were  often  made  that  any  member  who  wished  might  attend. 
These  orders  grew  into  a  general  practice.  It  is  said  also 
that  the  House  of  that  day  did  not  place  complete  confidence 
in  its  Speaker,  whom  it  regarded  as  the  agent  and  nominee 
of  the  King,  and  that  it  preferred  to  conduct  its  deliberations 
in  his  absence.  So  it  came  to  pass  that  what  is  called  a 
committee  of  the  whole  House  is  the  same  body  of  persons 
as  the  House  itself,  sitting  in  the  same  place,  with  slightly 
different  formalities  and  procedure. 

Before  a  recent  change  in  the  standing  order  of  the  House 
of  Commons,  all  bills  went  after  second  reading  to  a  com- 
mittee of  the  whole  House,  unless  the  House  ordered  other- 
wise. Now  the  presumption  is  reversed,  and  all  bills,  ex- 
cept a  special  class,  go  to  a  standing  committee  unless  the 
House  orders  otherwise.  But  the  finance  bill  and  other 
money  bills  of  the  year  must  go  to  a  committee  of  the  whole 
House,  and  opposition  is  always  made  when  it  is  proposed  to 
send  to  a  standing  committee  any  of  the  more  important 
bills  or  any  very  controversial  bill,  for,  notwithstanding  the 
recent  change  of  rules,  many  members  hold  that  every  mem- 
ber of  the  House  ought  to  have  an  opportunity  of  taking  part 
in  the  discussion  of  the  detailed  provisions  of  these  bills. 

When  a  bill  is  before  a  standing  committee  or  a  committee 
of  the  whole  House,  the  committee  goes  through  the  bill, 


82  THE  MECHANICS  OF  LAW  MAKING 

clause  by  clause,  discussing  any  amendments  that  may  be 
proposed,  determining  as  to  each  clause,  how,  if  at  all,  it 
should  be  amended,  and  whether  in  its  original  or  amended 
form  it  should  stand  part  of  the  bill,  and  then  whether  any 
new  clauses  should  be  added.  In  the  case  of  important 
and  controversial  bills  these  debates  may  last  over  many  days 
or  weeks,  and  the  notices  of  amendments  to  be  proposed  fill 
many  pages  of  the  parliamentary  notice  papers.  When  the 
discussion  is  finished  and  the  whole  bill  has  been  gone  through, 
the  chairman  of  the  committee  makes  a  simple  report  to  the 
House,  merely  stating  whether  the  bill  has  been  amended  or 
not. 

These  legislative  sittings  of  the  committee  of  the  whole 
House  and  of  standing  committees  are  open  to  the  public 
so  far  as  our  limited  accommodation  permits.  The  debates 
in  the  committee  of  the  whole  House  are  printed  and  pub- 
lished in  the  official  report.  Save  in  exceptional  cases 
there  is  no  official  report  of  debates  hi  standing  com- 
mittees. 

In  some  cases  a  bill,  instead  of  going  to  a  standing  com- 
mittee or  to  a  committee  of  the  whole  House,  is  sent  to  a 
small  select  committee  or  to  a  joint  committee  of  both  Houses. 
These  cases  are  comparatively  rare,  and  the  reason  for  adopt- 
ing this  course  usually  is  that  it  is  desired  to  summon  wit- 
nesses and  take  evidence  as  to  the  expediency  and  effect  of 
the  provisions  of  the  bill.  Committees  of  this  kind  usually 
make  special  reports,  stating  their  reasons  and  conclusions, 
but  bills  considered  by  them  have  to  be  considered  subse- 
quently by  a  committee  of  the  whole  House. 

After  the  committee  stage  follows  the  report  stage.  The 
House,  sitting  formally,  with  the  Speaker  in  the  chair,  con- 
siders the  bill  as  reported  to  it  by  the  committee,  and  dis- 


DUTIES  OF  A  GOVERNMENT  DRAFTSMAN        83 

cusses  and  determines  whether  any  further  alterations  or 
additions  should  be  made.  This  report  stage  is  in  some  cases 
dispensed  with,  and  in  other  cases  may  be  a  mere  formality. 
But  sometimes  it  is  a  very  serious  stage,  occupying  a  long 
time,  and  there  is  often  a  tendency  to  make  it  a  repetition  of 
the  committee  stage. 

The  final  stage  in  the  House  of  Commons  is  the  third  reading. 
At  this  stage  only  formal  or  verbal  alterations  are  allowed. 
What  the  House  does  is  to  consider  the  bill  as  a  whole,  and 
determine  whether,  in  its  opinion,  the  measure  ought  or  ought 
not  to  become  law. 

I  have  a  vivid  remembrance  of  my  own  experiences  during 
the  committee  stage  of  an  important  measure  which  took 
some  months  in  passing  through  the  House  of  Commons. 
The  official  day  would  begin  with  a  study  of  the  pages  of 
new  amendments  handed  in  and  printed  since  the  previous 
day.  One  would  consider  with  respect  to  each  amendment 
whether  it  could  be  accepted,  whether  it  should  be  opposed, 
and  if  so,  on  what  grounds,  whether  any  alteration  of  form 
would  render  it  easier  to  accept,  or  whether  an  alternative 
form  should  be  suggested,  the  leading  consideration  in  each 
case  being  consistency  with  the  general  principles  of  the  bill 
and  with  its  other  provisions.  One  would  dictate  notes 
on  those  points  and  leave  the  shorthand  writer  under  a 
strict  injunction  to  have  them  ready  by  the  time  the  debate 
on  the  bill  began.  Then  one  would  hurry  over  to  the  min- 
ister's office,  and  discuss  the  most  important  points  with  him. 
These  proceedings,  with  perhaps  a  brief  interval  for  snatch- 
ing luncheon,  would  occupy  the  time  till  the  debate  began. 
Then  one  would  go  down  to  the  House,  take  one  of  the  official 
seats  under  the  gallery,  watch  the  course  of  the  debate,  and 
scribble  notes  and  suggestions  intended  to  help  the  minister 


84  THE  MECHANICS  OF  LAW  MAKING 

from  the  draftsman's  point  of  view.  The  difficulties  of  doing 
so  were  in  my  time  enhanced  —  they  have  been  diminished 
since  —  by  the  fact  that  one's  official  seat  was  at  the  other 
end  of  the  House  from  that  on  which  ministers  sit,  and  one 
had  to  smuggle  up  notes  to  him  as  best  one  could  —  and  they 
often  did  not  arrive  in  time  —  unless  he  or  some  other  mem- 
ber on  his  behalf  could  find  time  to  come  down  to  one's  own 
end  of  the  House  for  a  colloquy  there,  a  proceeding  which  was 
avoided  if  possible,  because  it  not  only  occupied  time,  but 
might  invite  comment.  One  would  sit  there  till  near  mid- 
night or  later,  then  home,  and  then  —  da  capo  —  the  same 
process  would  begin  again  next  day.  It  was  exhausting 
work  while  it  lasted,  and  it  might  last  a  long  time. 

So  much  must  suffice  at  present  for  the  duties  of  the  gov- 
ernment draftsman  on  government  bills.  As  to  bills  brought 
in  by  private  members,  the  Treasury  minute  of  1869  directed 
that  the  parliamentary  counsel  should  report  on  such  bills 
in  special  cases  referred  to  him  by  the  Treasury.  But 
at  present,  except  in  the  case  of  such  references,  the  parlia- 
mentary counsel  is  in  no  way  responsible  for  the  preparation 
or  criticism  of  such  bills.  The  special  instructions  are  usu- 
ally given  in  cases  where  the  government,  being  favourably 
inclined  to  the  principle  of  a  private  member's  bill,  prom- 
ises to  facilitate  its  passing  on  condition  of  his  accepting  the 
government  amendments.1 

No  systematic  supervision  is  exercised  over  private  mem- 
bers' bills.  The  Home  Office  was  at  one  time  supposed  to 

1 A  similar  course  is  often  adopted  in  the  case  of  amendments  moved  by 
private  members  on  government  bills.  When  such  an  amendment  appears 
to  the  government  to  be  satisfactory  in  substance  but  faulty  in  form,  the 
government  draftsman  is  not  infrequently  instructed  to  place  himself  in 
communication  with  the  mover  of  the  amendment,  and  help  him  to  put 
his  proposals  into  better  shape. 


DUTIES  OF  A  GOVERNMENT  DRAFTSMAN        85 

exercise  some  kind  of  general  supervision  over  them,  but 
under  the  existing  practice  does  not  criticise  any  bills  except 
those  relating  to  Home  Office  subjects.  Each  government 
department  is  in  the  habit  of  watching  bills  specially  affect- 
ing matters  with  which  the  department  is  concerned,  and 
this  departmental  criticism  frequently  stops  the  progress  of 
mischievous  bills,  or  requires  the  insertion  in  them  of  nec- 
essary amendments.  It  is  also  the  duty  of  the  parliamentary 
clerk  of  the  Treasury  to  call  the  attention  of  departments  to 
bills  affecting  them.  And,  finally,  the  government  often 
relies  on  the  advice  of  the  law  officers  of  the  Crown  in  con- 
sidering whether  any  opposition  should  be  offered  to  private 
members'  bills.  In  practice,  however,  very  few  private 
members'  bills  succeed  in  getting  through  Parliament.  The 
number  of  days  allotted  for  their  discussion  is  limited,  and 
the  chance  of  getting  a  good  place  on  one  of  those  days  is 
determined  by  the  fortune  of  the  ballot.  Unless  a  private 
member  is  very  fortunate  in  the  ballot,  or  can  persuade  the 
government  to  adopt  his  bill,  or,  at  least,  to  give  him  a  share 
of  the  time  reserved  for  government  bills,  he  can  only  slip 
his  bill  through  by  general  consent  as  an  unopposed  measure, 
and  subject  to  the  risk  of  its  progress  being  stopped  by  any 
member  who  says  "I  object."  There  is  pretty  sure  to  be 
objection  in  some  quarters  of  the  House,  and  there  is  usually 
a  member  who  takes  upon  himself  the  functions  of  objector- 
general,  and  opposes  the  passage  of  any  bill  except  after 
opportunity  for  explanation  and  debate. 

The  main  duties  of  the  parliamentary  counsel  relate  to 
current  parliamentary  legislation.  There  are,  however, 
three  other  classes  of  duties  with  which  he  is  concerned :  — 

(1)  Advising  on  questions  affecting  parliamentary  legis- 
lation ; 


86  THE  MECHANICS  OF  LAW  MAKING 

(2)  Subordinate  legislation,  i.e.  Orders  in  Council  and 

statutory  rules ; 

(3)  Statute  law  revision  bills  and  consolidation  bills. 
The  parliamentary  counsel  was  required  by  the  minute 

of  1869  to  advise  on  all  cases  arising  on  bills  or  acts  drawn  by 
him.  The  amount  of  work  falling  under  this  head  is  in- 
definite, for  it  is  difficult  to  define  or  restrict  the  classes  of 
cases  which  are,  or  may  be,  connected  'with  legislation,  past, 
pending,  or  prospective.  In  such  cases  it  is  sometimes 
convenient  for  the  government  to  take  the  advice  of  the 
parliamentary  counsel  instead  of  consulting  the  law  officers 
of  the  Crown;  and  the  parliamentary  counsel  can  often, 
from  his  knowledge  of  the  history  and  intention  of  an  enact- 
ment, give  a  clue  to  its  true  construction.  For  this  reason, 
even  where  questions  are  referred  to  the  law  officers,  the 
case  for  their  opinion  has  frequently  to  be  settled  by  the 
parliamentary  counsel  and  preliminary  questions  have  to 
be  discussed  with  him. 

About  statute  law  revision  and  consolidation  bills  I  have 
spoken  already.  About  the  important  subject  of  subordi- 
nate legislation  I  shall  have  something  to  say  hereafter.  All 
I  need  say  about  it  now  is  this.  Under  the  minute  of  1869 
it  was  made  part  of  the  duty  of  the  parliamentary  counsel 
to  draw  or  settle  all  such  orders  in  Council  as  he  might  be 
instructed  to  draw  or  settle  on  special  occasions.  This  is  an 
exceptional,  and  not  a  general,  duty,  and  the  great  bulk  of 
orders  in  Council  are  drawn  outside  the  office,  by  or  under 
the  instructions  of  the  departments  by  which  they  are  ini- 
tiated. Most  of  the  statutory  rules  are  drawn  in  the  same 
way.  But  where  an  order  in  Council  or  a  set  of  statutory 
rules  is  of  exceptional  importance  or  difficulty,  it  is  sometimes 
drawn  in  the  office  of  the  parliamentary  counsel.  For  in- 


DUTIES  OF  A  GOVERNMENT  DRAFTSMAN       87 

stance,  the  code  of  rules  under  the  Army  Act  of  1881,  which 
was  part  of  the  great  scheme  of  consolidating  the  Mutiny 
Acts  and  the  Articles  of  War,  was  drawn  in  that  office,  and 
probably  could  not  have  been  drawn  elsewhere.  It  is  so 
important  that  rules  framed  under  an  Act  should  be  framed 
on  the  same  lines  as  the  Act  itself,  and  it  is  so  difficult  to 
frame  those  rules  properly  without  being  intimately  conver- 
sant with  the  provisions  of  the  Act  and  the  objects  aimed  at 
by  it,  that  the  parliamentary  counsel  not  unfrequently  finds 
himself  involved  in  some  kind  of  indirect  responsibility  for 
the  proper  framing  of  rules  or  orders  under  Acts  drawn  by 
him.  The  work  of  subordinate  legislation  has,  however, 
always  been  regarded  as  extraneous  to  the  ordinary  duties 
of  the  office. 

How  far  have  the  objects  aimed  at  by  Mr.  Lowe,  when  he 
established  the  parliamentary  counsel's  office  in  1869,  been 
attained  ? 

Those  objects  appear  to  have  been :  — 

(1)  Economy; 

(2)  Better  control  over  government  legislation  with  re- 

spect both  to  policy  and  to  finance ;  and 

(3)  improvement  of  the  form  of  statutes. 

I  think  that  I  may  answer  that  all  these  objects  have  been 
substantially  attained. 

Under  the  old  system,  special  fees  on  the  scale  of  those 
paid  to  members  of  the  parliamentary  bar  were  paid  to  drafts- 
men for  the  preparation  of  government  measures,  and  often 
amounted  to  very  large  sums.  Under  the  new  system  the 
payment  of  such  fees  has  practically  ceased.  The  permanent 
staff  of  the  parliamentary  counsel's  office  has  drawn  all 
government  bills  with  the  assistance  of  a  few  outside  counsel, 
employed  and  paid  under  the  responsibility  of  the  office. 


88  THE  MECHANICS  OF  LAW  MAKING 

Notwithstanding  the  growth  of  parliamentary  legislation 
since  1869,  the  cost  of  drafting  government  bills  has  been 
reduced  since  that  date. 

The  control  exercised  by  the  Treasury  and  the  prime 
minister  has  also  been  made  more  effectual.  As  instructions 
for  all  departmental  bills  must  come  through  the  Treasury, 
it  is  no  longer  possible  for  the  head  of  a  department  to  ini- 
tiate legislation  without  the  knowledge  or  consent  of  the 
first  lord  of  the  Treasury  and  the  chancellor  of  the  exchequer, 
one  of  whom  is  nearly  always  leader  of  the  House  of  Commons, 
nor  to  initiate  without  the  knowledge  of  the  Treasury  legis- 
lation involving  the  expenditure  of  public  money. 

Perhaps  the  chief  advantage  which  has  arisen  from  the 
institution  of  the  parliamentary  counsel's  office  has  been  an 
improvement  in  the  form  of  statutes.  Acts  of  Parliament 
will  always  form  the  subject  of  adverse  comments  by  the 
bench,  the  bar,  and  the  public.  But  if  the  English  statute 
book  of  the  present  day  is  compared  with  the  English  statute 
book  of  forty  or  fifty  years  ago,  it  is  impossible  to  deny  that 
the  language  of  statutes  has  become  more  concise,  uniform, 
and  accurate,  and  that  the  arrangement  of  statutes  has 
become  more  logical  and  consistent.  The  select  committee 
of  1875  on  Acts  of  Parliament  expressly  referred  to  "  the 
better  style  of  drafting  which  has  been  recently  introduced 
into  Acts  of  Parliament,  as  well  with  regard  to  the  arrange- 
ment of  clauses  and  the  subdivision  of  the  bill  into  distinct 
parts,  as  also  with  regard  to  the  language  used,  which,  in 
simplicity  and  clearness,  is  far  superior  to  the  '  verbose  and 
obscure  language'  of  former  enactments." 

Agencies  similar  to  the  office  of  the  parliamentary  counsel 
in  England  are  to  be  found  in  British  India,  in  the  British 
self-governing  dominions,  and  in  other  parts  of  the  British 


DUTIES  OF  A  GOVERNMENT  DRAFTSMAN       89 

empire,  but  it  is  unnecessary  to  go  into  detail  about  them 
here.1 

Now  it  is  obvious  that  an  office  such  as  that  of  the  parlia- 
mentary counsel  is  not  suitable  to  the  conditions  of  legis- 
lation in  the  United  States,  where  representatives  of  the 
executive  government  have  no  place  in  the  legislature,  and 
where  there  are  consequently  no  such  things  as  government 
bills.  If  you  consider  it  desirable  to  establish  any  special 
agency  for  preparing  bills  intended  to  become  laws,  or  for 
criticising  or  improving  the  form  of  such  bills,  that  agency 
would,  I  suppose,  be  appointed  and  controlled,  not  by  the 
executive  government,  but  by  the  legislature  itself,  or  by  its 
Speaker  as  its  representative.  It  would  be  easy  to  suggest 
methods  by  which  an  American  legislature  might  establish 
and  utilise  an  official  or  semi-official  agency  of  this  kind,  if  it 
were  disposed  to  do  so.  For  instance,  it  might  make  a  rule 
or  a  standing  order  requiring  a  bill,  as  a  condition  of  its 
being  allowed  to  emerge  from  committee,  to  be  submitted, 
in  respect  of  form,  to  an  expert  draftsman,  appointed  or 
approved  by  the  legislature  or  by  its  Speaker.  I  say  ap- 
proved, because  there  might  conceivably  be  a  panel  of  ap- 
proved draftsmen,  any  one  of  whom  might  be  selected  for 
this  purpose.  And  the  schools  of  draftsmen  which  some  of 
your  States  and  Universities  are  endeavouring  to  establish 
might  do  useful  work  in  training  the  draftsmen  to  assist 
those  legislatures. 

Then,  again,  I  can  well  conceive  that  a  legislature  would  do 
well  to  appoint  and  maintain  a  small  permanent  committee, 
whose  duties  it  would  be  to  keep  a  watchful  eye  over  the 
condition  of  the  statute  book,  to  suggest,  and  to  supervise 
the  execution  of,  such  useful  processes  as  the  indexing,  ex- 

1  See  my  Legislative  Methods  and  Forms,  Chapter  IX. 


90  THE  MECHANICS  OF  LAW  MAKING 

purgation,  and  revision  of  the  statute  book,  and  the  consoli- 
dation of  statutes ;  in  short,  all  those  processes  which  are 
required  to  make  the  statute  law  of  a  country,  or  of  a  par- 
ticular State  within  that  country,  more  knowable  and  in- 
telligible, to  make  it  rather  more  easy  for  the  citizen  to 
know  and  understand  those  laws  which  he  is  supposed  to 
know,  but  which,  in  point  of  fact,  he  does  not  know,  and, 
being  only  a  human  being,  with  limits  to  his  intelligence, 
cannot  know.  Whether  such  a  committee  would  do  useful 
work  would  depend  partly  on  the  extent  to  which  the  legis- 
lature would  aid  it  by  appropriations,  and,  still  more,  on 
the  zeal,  capacity,  patience,  and  industry  of  the  chairman  and 
secretary  of  the  committee.  Work  of  this  kind,  and  I  speak 
from  painful  experience,  is  apt  to  be  dull  and  laborious. 
But  it  ought  not  to  be  'scamped/  and  for  carrying  it  on  with 
thoroughness  and  persistence  qualities  are  required  which  it 
is  not  always  easy  to  find. 

These  are  the  kinds  of  suggestions  which  occur  to  an  Eng- 
lish draftsman  as  possibly  practicable,  but  of  course  they 
can  only  be  offered  with  great  diffidence. 


VI 
RULES  FOR  THE  GUIDANCE  OF  DRAFTSMEN 

THE  composition  and  language  of  statutes  is  a  subject 
which  has  been  comparatively  neglected  by  the  authors  of 
legal  literature,  and  on  which  not  very  much  has  been  written. 
On  the  interpretation  of  statutes  there  are  several  well- 
known  textbooks.  The  object  of  the  writers  of  these  books 
has  been  to  collect  such  judicial  decisions  and  other  authori- 
ties, and  to  formulate  such  rules  and  principles,  as  may  assist 
the  courts  and  legal  practitioners  in  determining  the  meanings 
which  ought  to  be  attached  to  obscure  or  ill-expressed  enact- 
ments. Books  of  this  kind  are  very  useful  to  the  draftsman 
of  an  Act  of  Parliament  as  showing  the  meaning  which  the 
courts  may  be  expected  to  attach  to  particular  expressions 
and  the  canons  of  construction  which  the  courts  will  observe. 
They  are  also  useful  to  him  as  illustrating  the  pitfalls  which 
he  should  avoid,  and  the  consequences  which  the  use  of 
loose  or  inaccurate  language  may  entail.  But  they  are 
written  primarily,  not  for  the  draftsman,  but  for  the  prac- 
titioner who  has  to  advise  on  or  argue  cases  on  statute  law, 
or  for  the  courts  which  have  to  decide  such  cases.  They  are 
concerned  rather  with  the  pathology  or  nosology  of  statutory 
drafting  than  with  its  laws  of  health.  They  illustrate  bad 
drafting;  they  do  not,  except  indirectly,  lay  down  rules  for 
good  drafting.  On  the  latter  branch  of  the  subject,  as  I 
have  said,  comparatively  little  has  been  written. 

Of  the  treatises  which  have  been  written  on  this  subject,  there 
are  two  to  which  I  should  like  to  direct  your  special  attention. 

91 


92  THE  MECHANICS  OF  LAW  MAKING 

Among  the  works  of  Jeremy  Bentham  you  will  find  a 
treatise  on  what  he  called  Nomography,  or  the  Art  of  Indit- 
ing Laws.  The  materials  for  this  treatise  appear  to  have 
been  composed  between  the  years  1811  and  1831,  but,  like 
so  many  of  his  works,  they  were  not  put  together  or  com- 
pleted by  him,  and  were  left  to  be  edited  and  published  after 
his  death  in  1832.1  Bentham  was  a  great  coiner  of  words, 
and  though  he  does  not  seem  to  have  invented  the  word 
"nomography,"  for  it  appears  to  have  existed  as  a  dictionary 
word  before  his  time,  he  was  the  first  who  attempted  to  give 
it  currency  in  the  meaning  which  he  attached  to  it.  He 
deals  with  the  subject  in  his  usual  systematic,  comprehensive, 
and  exhaustive  manner.  He  explains  that  he  employs  the 
term  "  nomography  "  to  distinguish  that  part  of  the  art  of 
legislation  which  has  relation  to  the  form  given,  or  proper  to 
be  given,  to  the  matter  of  which  the  body  of  law  and  its 
several  parts  are  composed:  the  form,  in  contradistinc- 
tion to  the  matter,  and  in  so  far  as  the  one  object  is  capable 
of  being  held  in  contemplation  apart  from  the  other.  He 
then  tells  us  that  he  will  proceed  to  consider :  — 

1.  The  relations  which  nomography  bears  to  the  govern- 
ment   of  a  private  family,   to  logic,    to  a  pannomion  or 
universal  code  of  laws,  to  proposal  and  petition,  and    to 
private  deontology ; 

2.  The  ends  in  view  in  the  case  of  nomography ; 

3.  The  imperfections  to  which  it  is  exposed  ; 

4.  The  remedies  for  those  imperfections ; 

5.  The  subject  of  language ; 

6.  The  perfections  of  which  the  legislative  style  is  sus- 
ceptible ;  and 

7.  Lastly,  the  form  which  enactments  may  assume. 

1  See  Bentham'a  Works  (Bowring's  edition),  III. 


KTJLES  FOR  THE  GUIDANCE  OF  DRAFTSMEN      93 

You  may  perhaps  wonder  what  nomography  has  to  do 
with  the  government  of  a  private  family.  But  this  reference 
illustrates  the  meticulous  care  with  which  Bentham  en- 
deavoured to  consider  every  possible  aspect  and  relation  of 
any  subject  with  which  he  dealt.  He  would  probably  be 
more  read  if  he  had  not  been  so  excessively  anxious,  es- 
pecially in  his  later  years,  to  say  everything  that  ought  to 
be  said  or  could  be  said  on  any  given  subject.  In  this  case 
he  thought  it  necessary  to  point  out  the  distinction  between 
commands  emanating,  or,  as  he  was  pleased  to  call  it,  "eman- 
ing,"  from  a  State  and  commands  emanating  from  the  head 
of  a  family,  and  to  explain  why  laws  or  commands  of  the 
first  class  required,  whilst  commands  of  the  second  class  did 
not  require,  subsidiary  or  inducement-giving  laws,  laws  de- 
fining the  reward  to  be  given  or  the  evil  to  be  inflicted  as 
inducements  for  doing  or  refraining  from  certain  actions. 
And  he  gives  as  illustrations  of  the  family  laws  or  commands 
which  do  not  require  these  specific  inducements,  the  follow- 
ing :  "Set  the  loaf  on  the  table"  ;  "Put  the  coals  on  the  fire" ; 
" Open  the  window."  "In  these  commands,"  he  says,  "may 
be  seen  so  many  examples  of  the  laws  of  which  a  private 
family  is  the  scene;  and  in  seeing  these  laws,  what  will 
also  be  seen  is  the  integrality  of  their  character." 

I  pass  over  what  he  says  about  the  relations  of  nomography 
to  logic,  to  his  Pannomion  or  universal  code,  to  proposals 
and  petitions,  and  to  private  deontology,  and  come  to  his 
remarks  about  the  proper  end  to  be  kept  in  view  by  the 
nomographer,  be  he  draftsman  or  legislator. 

The  general  end  of  nomography,  he  says,  is  relative  noto- 
riety, by  which  he  means  framing  and  publishing  the  law  in 
such  a  way  as  to  bring  it  to  the  knowledge  of  the  proper 
persons.  The  proper  persons  —  not  necessarily  all  persons. 


94  THE  MECHANICS  OF  LAW  MAKING 

It  need  not  reach  everybody's  mind.  For  instance,  when  a 
law  imposes  death  as  a  penalty  for  an  offence,  the  law  need 
not  reach  the  mind  of  the  possible  offender,  because  prudence 
and  morality  ought  to  be  sufficient  deterrents,  but  it  ought 
to  reach  the  minds  of  those  who  have  to  administer  the  law 
lest  they  should  apply  the  wrong  penalty.  Bentham  does 
not  express  himself  quite  in  this  way,  but  this  is  what  he 
means.  Then  he  asks  what  are  the  particular  ends  to  be 
arrived  at,  or,  as  he  puts  it,  what  are  the  means  best  adapted 
to  the  general  end.  His  answer  is  the  avoidance  of  the  gen- 
eral modes  of  imperfection,  of  which,  in  point  of  expression 
and  method,  the  style  of  legislative  penmanship  is  suscep- 
tible. "  For  the  attainment  of  this  end,  make  your  meaning 
known  and  understood  by  every  person  of  whom  you  expect 
that  he  should  act  in  consequence."  An  excellent  general 
rule,  which  he  enforces  and  illustrates  by  enumerating  and 
describing  the  chief  modes  of  imperfection  which  are  to  be 
avoided.  He  divides  these  into  imperfections  of  the  first  order 
and  imperfections  of  the  second  order.  The  imperfections  of 
the  first  order  which  he  enumerates  are:  1.  Ambiguity. 
2.  Obscurity.  3.  Overbulkiness.  His  list  of  imperfections  of 
the  second  order  is :  1 .  Unsteadiness  in  respect  of  expression, 
by  which  he  means  the  use  of  different  words  for  the  same 
thing.  2.  Unsteadiness  in  respect  to  import,  by  which  he 
means  using  the  same  word  in  different  senses.  3.  Redun- 
dancy. 4.  Longwindedness.  5.  Entanglement.  6.  Naked- 
ness in  respect  of  helps  to  intellection.  (He  means  by  this 
such  things  as  cutting  up  a  law  into  sections,  numbering 
sections  and  giving  them  head-notes  and  so  forth.)  And 
7.  Disorderliness.  He  finds  all  these  imperfections,  espe- 
cially the  last,  pre-eminently  illustrated  by  the  English  stat- 
ute book,  which,  according  to  him,  is  the  great  model  and 


RULES  FOR  THE  GUIDANCE  OF  DRAFTSMEN      95 

storehouse  of  everything  that  a  good  draftsman  ought  to 
avoid.  Study,  if  you  can,  an  English  statute,  and  express 
yourself  as  differently  from  it  as  possible.  That  is  an  epit- 
ome of  his  advice.  And  so  he  is  led  up  to  the  topic  in  which 
he  really  revels,  in  which  he  runs  riot  with  inexhaustible  enjoy- 
ment, "  the  general  depravity  of  the  style  of  English  statutes." 
"For  bringing  to  view  and  summing  up  the  imperfections 
of  the  English  statute  law,"  so  he  begins  his  remarks  on  this 
topic,  "no  more  is  requisite  than  to  bring  to  view  and  sum 
up  the  points  by  which  it  is  distinguished  from  the  ordinary 
language  of  the  multitude.  Wherever  it  differs,  it  differs 
to  its  disadvantage  —  peculiar  absurdity  the  immediate 
effect,  peculiar  mischief  the  result.  These  imperfections 
exercise  their  baneful  influence  not  only  on  the  mind  of  the 
subject,  but  on  the  mind  of  the  legislator  himself,  which  they 
darken  and  confuse."  He  has  examined  a  single  statute 
and  found  in  it "  a  multitude  of  such  gross  palpable  grammati- 
cal errrors  as  scarcely  any  schoolboy,  who  had  made  his 
way  to  the  upper  form  of  any  school  in  which  no  language 
was  taught  beside  English,  would  see  himself  convicted  of 
without  shame." 

After  this  comes  a  repetition  and  amplification,  with  illus- 
trations from  the  statute  book,  of  the  several  imperfections 
which  he  enumerated  before :  uncognoscibility,  ambiguity, 
obscurity,  overbulkiness,  unsteadiness,  redundancy,  long- 
windedness,  complexity,  whence  entanglement,  nakedness 
in  respect  to  helps  to  intellection,  unapt  arrangement  and 
disorderly  collocation.  Hard  things  have  been  said  about 
the  language  of  English  statutes  since  Bentham's  time; 
but  never  has  it  been  so  mercilessly  belaboured  as  by 
Bentham  himself. 

The  chapters  on  Imperfections  are  followed  by  chapters 


96  THE  MECHANICS  OF  LAW  MAKING 

on  Remedies,  and  these  chapters  are  well  worth  reading,  if 
you  can  get  over  the  preliminary  obstacle  presented  by  the 
crabbedness  of  Bentham's  style.  That,  I  admit,  is  a  very 
big  "If."  Bentham  in  his  early  years  wrote  admirable  Eng- 
lish, terse,  lucid,  vigorous,  racy,  pungent.  The  celebrated 
Fragment  on  Government,  which  was  published  in  1776, 
is  a  model  of  style.  But  in  his  later  years  his  eccentricities 
grew  upon  him  until  he  became  almost  unreadable  except 
as  interpreted  and  translated  by  such  faithful  disciples  as 
Dumont.  And  the  treatise  on  "Nomography"  belongs  to 
his  latest  years.  Still,  if  you  can  surmount  this  preliminary 
obstacle,  the  chapters  to  which  I  refer  deserve  and  would 
repay  careful  study.  They  deserve  study  for  two  reasons. 
The  first  reason  is  historical.  Bentham  was,  as  I  have  said 
before,  perhaps  the  greatest  law  reformer  that  ever  lived. 
He  was  certainly  the  greatest  law  reformer  that  England 
ever  produced.  He  died  in  the  year  1832,  the  year  in  which 
the  Reform  Act  was  passed,  and  no  man  has  left  so  deep  an 
imprint  on  the  form  and  on  the  substance  of  subsequent 
English  legislation.  The  steps  which  I  have  described  to 
you  for  improving  the  form  of  the  English  statute  book 
by  the  processes  of  indexing,  expurgation,  revision,  and  con- 
solidation, all  owe  their  initiation  directly  or  indirectly  to 
his  fertile  and  suggestive  brain.  So  also  does  the  better 
style  of  drafting  statutes  to  which  attention  was  directed 
by  the  Select  Committee  on  Acts  of  Parliament  which  sat 
in  1875.  It  would  be  interesting  to  take  —  or  rather  to  get 
a  small  army  of  sturdy  library  assistants  to  take  —  a  set  of 
the  English  Statutes  at  Large  as  they  existed  in  Bentham's 
time,  set  it  by  the  side  of  a  modern  edition  of  the  Statutes 
Revised,  and  then  —  bearing  in  mind  that  more  than  80  years 
fruitful  of  legislation  have  passed  since  Bentham's  death,  — 


RULES  FOR  THE  GUIDANCE  OF  DRAFTSMEN     97 

consider  why,  notwithstanding  this  additional  legislation, 
the  bulk  of  the  later  edition  is  materially  less  than  the  bulk 
of  the  earlier  edition,  and  how  far  this  reduction  of  bulk 
is  due  to  the  adoption  of  Bentham's  suggestions.  It  would 
be  interesting  also  to  take  a  typical  Georgian  statute,  one 
of  those  which  Bentham  selected  as  illustrations  for  the  drafts- 
man of  "  How  not  to  do  it,"  compare  it  with  any  English 
statute  of  the  last  40  years,  note  the  differences  in  form,  and 
consider  how  far  these  differences  correspond  with  sugges- 
tions for  improvement  which  are  to  be  found  in  Bentham's 
treatise  on  "  Nomography." 

This,  then,  is  the  historical  reason  for  studying  those  chap- 
ters. And  there  is  a  practical  reason  also.  Hidden  away 
in  their  crabbed  pages  may  be  found  a  number  of  shrewd 
practical  rules,  maxims,  suggestions,  criticisms,  and  warn- 
ings, which  the  draftsman  of  the  present  day  might  with 
profit  study  and  take  to  heart.  Take,  for  instance,  the  propo- 
sition and  rule  which  he  lays  down  with  respect  to  the  struc- 
ture and  length  of  sentences :  — 

Proposition :  The  shorter  the  sentence,  the  better. 

Rule :  Minimize  the  length  of  sentences. 

Reasons:  1.  The  shorter  the  sentence,  the  clearer  it  is  to  the 
eyes  of  the  reader,  the  easier  to  retain  in  his  memory. 

2.  The  shorter  the  sentence,  the  clearer  is  it  in  the  eyes  of  the 
legislator  and  the  judge. 

This  may  mean  more  sentences,  but  every  sentence  will  be 
easier  to  understand  and  remember. 

Here  again  are  some  rules  which  he  suggests  as  tending 
to  prevent  the  evil  of  longwindedness :  — 

Avoid  repetitions  from  habit  of  useless  formulas ;  as  in  English 
practice. 

Repeat  not  self-evident  propositions:  Ex.  Whereas  it  is  ex- 
pedient, &c. 


98  THE  MECHANICS  OF  LAW  MAKING 

Lists  of  species,  once  given,  form  a  generic  term,  which  after- 
wards substitute. 

Exceptions  excepted,  let  the  masculine  singular  comprehend 
both  genders  and  numbers. 

Denominate,  enumerate,  and  tabulate  principles.  It  facili- 
tates reference,  and  thereby  contributes  to  conciseness. 

He  provides  some  practical  suggestions  for  making  it 
easier  to  find  your  way  about  the  contents  of  an  Act.  "  Break 
a  law  down  into  parts,"  he  says,  "and  affix  a  different  number 
to  each  part."  This  is  the  foundation  of  the  modern  practice 
—  it  is,  I  believe,  quite  post-Benthamic  —  of  dividing  an  Act 
which  deals  with  different  but  cognate  subjects  into  parts, 
each  separately  numbered  and  described,  and  of  grouping 
sections  under  a  common  descriptive  heading  printed  in 
italics.  Little  devices  of  this  kind  are,  as  every  one  knows, 
great  time-savers  for  a  busy  man,  and  it  is  fortunate  for 
us  that  they  were  not  considered  unworthy  of  the  attention 
of  Bentham's  philosophic  but  intensely  practical  mind. 

I  have  said  that  Bentham's  writings,  including  his  trea- 
tise on  "  Nomography,"  exercised  an  enormous  influence  on 
subsequent  English  legislation.  But  this  particular  trea- 
tise did  not  give  rise  to  any  extensive  literature.  John  Austin, 
the  well-known  writer  on  Jurisprudence,  touched  on  the  sub- 
ject dealt  with  by  the  treatise,  and  I  will  quote  two  of  his 
remarks.  The  first  is  this  :  — 

I  will  venture  to  affirm  [he  says]  that  what  is  commonly  called 
the  technical  part  of  legislation  is  infinitely  more  difficult  than  what 
may  be  called  the  ethical.  In  other  words  it  is  far  easier  to  con- 
ceive justly  what  would  be  useful  law,  than  so  to  construct  that 
same  law  that  it  may  accomplish  the  design  of  the  law-giver. 

And  in  the  second,  he  says  that :  — 

Statutes  made  with  great  deliberation,  and  by  learned  and 
judicious  lawyers,  have  been  expressed  so  obscurely  or  have  been 


RULES  FOR  THE  GUIDANCE  OF  DRAFTSMEN      99 

constructed  so  inaptly  that  decisions  interpreting  the  sense  of 
these  provisions,  or  supplying  and  correcting  the  provisions  ex 
ratione  legis,  have  been  of  necessity  heaped  upon  them  by  the 
courts  of  justice.  Such,  for  example,  is  the  case  with  the  Statute  of 
Frauds  which  was  made  by  three  of  the  wisest  lawyers  in  the  reign 
of  Charles  II,  Sir  M.  Hale  (if  I  remember  right)  being  one  of  them. 

I  take  these  quotations  from  a  little  book  written  by  the 
man  who  is  more  responsible  than  any  one  else  for  the  form 
of  modern  English  statutes.  My  master  in  the  art  of  par- 
liamentary drafting  was  the  late  Lord  Thring,  and  I  began 
to  work  under  him  so  long  ago  as  the  beginning  of  the  year 
1870,  not  long  after  he  had  been  made  head  of  the  newly 
constituted  office  of  the  parliamentary  counsel.  He  used 
to  put  into  the  hands  of  those  who  assisted  him,  for  their 
guidance,  an  official  memorandum  which  he  had  drawn  up, 
and  which  was  entitled  Instructions  to  Draftsmen.  A 
great  many  years  afterwards  I  was  putting  together  materials 
for  the  book  which  I  called  Legislative  Methods  and 
Forms  and  which  was  published  in  1901.  At  that  time 
Lord  Thring's  instructions  to  draftsmen  had  long  been  out 
of  print,  and  copies  of  them  were  difficult  to  obtain.  So  I 
thought  it  might  be  useful  to  insert  in  my  book  a  chapter 
on  the  Form  and  Arrangement  of  Statutes,  consisting  of 
practical  notes  which  I  had  made  from  time  to  time  for  the 
guidance  of  myself  and  of  those  who  had  worked  with  me 
or  under  me  in  the  preparation  of  legislative  measures.  Lord 
Thring  was  a  careful  and  admiring  student  of  Bentham,  and 
his  Instructions  are  permeated  by  the  Benthamic  spirit. 
My  own  practice  was  modelled  largely  on  Lord  Thring's 
teaching.  So  you  will  see  the  affiliation.  When  my  book 
was  published,  Lord  Thring  was  a  very  old  man,  well  past 
eighty,  but  the  appearance  of  my  book  stimulated  him,  very 


100  THE  MECHANICS  OF  LAW  MAKING 

fortunately,  I  think,  to  hunt  up  his  old  memorandum  or 
treatise,  and  to  republish  it  under  the  title  of  Practical 
Legislation,  the  Composition  and  Language  of  Acts  of  Par- 
liament and  Business  Documents.1  'He  prefixed  to  it  an 
introduction,  which  is  mainly  autobiographical,  and  which 
throws  interesting  glimpses  on  the  experiences  of  a  veteran 
draftsman.  He  tells  us  how  he  passed  from  his  university 
career  at  Cambridge,  "to  the  study  of  conveyancing,  the 
driest  of  all  earthly  studies,"  he  calls  it,  and  "there,"  he  says, 
"I  found  that  the  apparent  object  of  legal  expression  was  to 
conceal  the  meaning  from  ordinary  readers,  and  that  the 
forms  which  a  law  student  of  that  period  was  incessantly 
employed  in  copying  were  wordy  cairns,  on  to  which  each 
conveyancer  of  eminence  had  from  time  to  time  thrown  a 
new  word  till  the  whole  became  a  huge  heap  of  unintelli- 
gibility."  Jeremy  Bentham  could  not  have  expressed  him- 
self with  greater  vigour. 

Briefless  [he  goes  on  to  say]  and  therefore  with  much  leisure,  I 
devoted  a  great  deal  of  time  to  the  study  of  contents  of  the  statute 
book,  and  here  I  found  a  great  contrast  between  its  earlier  and  its 
later  pages.  The  prince  of  all  draftsmen,  Stephen  Langton,  the  Papal 
Legate,  expressed  Magna  Charta  in  short  and  precise  language ;  for 
example,  no  one  can  complain  of  ambiguity  or  verbosity  in  the  most 
famous  of  all  written  enactments  which  declares,  when  translated  "To 
no  man  will  we  sell,  to  no  man  will  we  deny  or  delay,  right  or  justice." 
The  draftsman  also  of  the  twenty-second  year  of  Henry  VIII  (c.  9), 
leaves  no  room  for  doubt  as  to  his  meaning  when  he  says,  after 
reciting  that  the  cook  of  the  Bishop  of  Rochester  had  put  poison 
into  a  dish  of  broth  that  he  had  prepared,  "Our  said  Sovereign 
Lord  the  King  of  his  blessed  disposition  inwardly  abhorring  all  such 
abominable  offences  .  .  .  hath  ordained  and  enacted  by  authority 
of  this  present  Parliament  that  the  said  poisoning  be  adjudged  and 

v1  London,  John  Murray,  1903. 


RULES  FOR  THE  GUIDANCE  OF  DRAFTSMEN       101 

deemed  high  treason  and  that  the  said  RxiKayd^f or;the  said  rnprder 
and  poisoning  of  the  said  two  persons  ...  shall  ^stanjl  .and,  be 
attainted  of  high  treason  and  because  that  ,dfite$tJ&bte  'jtftypp^  i^cyw, 
newly  practised  and  committed  requiretK  conciign  punishment  for 
the  same,  it  is  ordained  and  enacted  .  .  .  that  the  said  Richard 
Rose  shall  be  therefore  boiled  to  death  without  having  any  ad- 
vantage of  his  clergy." 

Forcible  language  certainly,  and  expressive,  and  although 
one  might  be  disposed  to  be  critical,  and  to  feel  some  doubts 
as  to  whether  the  Plantagenet  and  Tudor  draftsmen,  strong 
and  picturesque  as  their  language  often  was,  could  be  pru- 
dently followed  as  models  by  draftsmen  of  a  later  and  more 
prosaic  age,  we  cannot  help  being  moved  by  the  enthusiasm 
which  the  old  man  displays  for  the  Vetera  Statute,  over  which 
he  had  pored  in  his  earlier  and  briefless  days. 

As  to  the  statutes  of  more  modern  times,  he  contents  him- 
self with  quoting  and  adopting  the  language  used  by  John 
Austin  in  a  passage  which  I  have  quoted  to  you  already. 
Then  he  goes  on  to  give,  as  he  used  to  be  fond  of  giving  when 
I  sat  at  his  feet  in  my  own  earlier  days,  ludicrous  instances 
of  confused  expressions  which  occasionally  appeared  in 
the  pages  of  the  statute  book.  Thus,  among  the  things 
which  might  be  expressed  differently,  there  is  an  instance  in 
an  Act  of  George  the  Third  (52  G.  3,  c.  146)  under  which 
penalties  were  to  be  given  half  to  the  informer  and  half  to 
the  poor  of  the  parish.  And  the  only  penalty  imposed  by 
the  statute  was  transportation  for  fourteen  years.  Nor 
does  he  commend  the  following  definition  in  a  local  Improve- 
ment Act.  "The  term  new  building  means  any  building 
pulled  or  burnt  down  to  or  within  ten  feet  from  the  surface 
of  the  adjoining  ground."  Amendments  proposed  to  bills, 
amendments  from  which  he  suffered  grievously  when  gov- 
ernment draftsman,  have  not  infrequently,  he  says,  erred 


102  THE  MECHANICS  OF  LAW  MAKING 

in  vagueness.   'And  he  gives  as  an  illustration  an  amendment 
proposecLby  an  eminent*  Queen's  counsel  in  1865. 

"Every*  dog*  foimd'tresjiaissing-on  inclosed  land  unaccompanied 
by  the  registered  owner  of  such  dog  or  other  person  who  shall  on 
being  asked  give  his  true  name  and  address  may  be  then  and  there 
destroyed  by  such  occupier  or  by  his  orders. 

Then  he  goes  on  to  tell  us  how,  to  qualify  himself  for  avoid- 
ing, if  possible,  such  pitfalls  as  these,  he  studied  a  book  by 
Mr.  Coode  on  legal  expression,  and  the  American  codes, 
especially  those  of  Mr.  Field,  and  also  the  code  of  procedure 
of  the  State  of  New  York.  As  to  Mr.  Coode's  book,  I  am 
interested  to  see  that  a  recent  writer  on  statute  law-making 
in  the  United  States  has  unearthed  and  utilised  a  copy  of 
it.  But  in  his  own  country,  Mr.  Coode  has,  I  fear,  long  been 
forgotten,  and  I  searched  in  vain  for  his  name  in  the  English 
Dictionary  of  National  Biography.  Nor  am  I  sure  that 
the  compositions  of  David  Dudley  Field  enjoy  quite  the 
same  reputation  now  as  they  did  when  Lord  Thring  was  a 
young  man.  But  I  am  sure  that  you  will  have  been  inter- 
ested in  hearing  that  when  the  most  famous  of  our  drafts- 
men was  learning  his  lessons,  it  was  to  New  York  that  he 
turned  for  models  of  expression  and  arrangement.  Well, 
after  studying  these  models,  he  found  that  the  subjects  of 
Acts  of  Parliament,  as  well  as  the  provisions  by  which  the 
law  is  enforced,  would  admit  of  being  reduced  to  a  certain 
degree  of  uniformity;  that  the  proper  mode  of  sifting  the 
materials  and  of  arranging  the  clauses  can  be  explained; 
and  that  the  form  of  expressing  the  enactments  might  also 
be  made  the  subject  of  regulation.  He  found  also  that  the 
suggestions  made  as  to  the  course  to  be  taken  to  ensure 
clearness  are  not  solely  applicable  to  Acts  of  Parliament, 
but  with  a  little  adaptation  may  be  applied  to  every  sort  of 


RULES  FOR  THE  GUIDANCE  OF  DRAFTSMEN       103 

composition  employed  in  business.  Before  very  long  Thring 
got  drafting  employment  from  the  government  and  was 
able  to  apply  the  principles  which  he  had  learnt.  He 
illustrates  the  application  of  those  principles  by  referring 
to  the  great  Merchant  Shipping  Act  of  1854,  which  he  drew, 
and  which  has  now  been  superseded  by  a  later  Act. 

Then,  in  order  to  show  that  whatever  defects  might  exist 
in  his  treatise,  they  were,  at  all  events,  not  due  to  ignorance 
or  want  of  experience,  he  goes  on  to  describe  his  long  official 
career,  and  how,  after  1861,  when  he  became  Home  Office 
Counsel,  he  was  for  the  remainder  of  his  official  life  occupied 
almost  entirely  in  preparing  legislation. 

There  are  some  delightful  reminiscences  of  Gladstone  and 
Disraeli,  under  both  of  whom  he  served,  and  as  these  remi- 
niscences are  admirable  illustrations  of  the  mode  in  which 
Acts  of  Parliament  are  prepared  in  England,  I  feel  justified 
in  quoting  them  here.  As  an  example  of  the  mode  in  which 
a  government  bill  is  constructed,  Thring  takes  the  Irish 
Land  Act  of  1870  which  he  drew  for  Gladstone. 

The  instructions  given  me  were  as  usual,  to  a  great  extent, 
verbal  ones,  conveyed  during  a  series  of  conferences  with  Mr. 
Gladstone.  I  used  to  attend  him  at  his  house  generally  by  myself. 
I  never  hesitated  to  tell  him  my  mind,  "This  will  not  do";  he 
would  then  stand  up  with  his  back  to  the  fire  and  make  me  a  little 
speech  urging  his  view  of  the  case ;  I  then  replied  shortly  till  the 
point  was  settled.  I  recollect  on  one  occasion  his  manner  was  so 
vehement  that  I  thought  I  must  have  gone  beyond  bounds  in  con- 
tradiction and  began  to  apologise.  His  reply  was,  "Go  on  as  you 
always  have  done  and  make  no  apologies;  if  my  manner  has  led 
you  to  think  that  I  am  offended,  I  am  sorry  for  it." 

Mr.  Gladstone's  [he  goes  on  to  say]  was  the  most  construc- 
tive intellect  with  which  I  ever  was  brought  in  contact  and  also 
was  the  most  untiring  in  devotion  to  its  object.  He  understood 
and  revised  every  word  of  a  bill  and  even  settled  the  marginal 


104  THE  MECHANICS  OF  LAW  MAKING 

notes.  Once  only  had  we  any  discussion  as  to  the  arrangement  of 
a  bill,  and  this  arose  on  the  Irish  Disestablishment  Bill.  I  wished 
to  put  in  one  short  clause  at  the  very  commencement,  a  sentence 
disestablishing  the  Irish  Church."  Mr.  Gladstone  disapproved  and 
I  was  about  to  accept  his  instruction  to  postpone  the  provision  when 
Lord  Granville  interfered,  saying,  ''Had  you  not  better  pay  atten- 
tion to  the  draftsman's  suggestions  ?  "  Whereupon  Mr.  Gladstone 
gave  way  and  the  proposed  clause  appeared  at  the  beginning  of  the 
bill. 

This  is  his  account  of  Gladstone  and  his  methods.  I  must 
go  on  and  quote  what  he  says  of  Disraeli,  because  there 
could  be  no  better  illustration  of  the  severe  stress  under 
which  government  draftsmen  occasionally  work  in  England. 

A  strange  contrast  to  Mr.  Gladstone's  management  of  bills  was 
that  of  Mr.  Disraeli.  He  seemed  to  have  an  intuitive  perception 
of  what  would  pass  the  House  of  Commons,  but  he  cared  nothing 
for  the  details  of  a  bill,  and  once  satisfied  with  the  principle  of  a 
bill,  he  troubled  comparatively  little  about  its  arrangements  or  its 
construction.  It  was  in  course  of  preparing  the  Reform  Bill  of 
1867  (and  watching  every  night  its  passage  through  Parliament 
that  I  had  ample  means  for  the  first  and  last  time  of  judging  of  Mr. 
Disraeli's  characteristics. 

I  was  constantly  struck  by  his  great  skill  in  overcoming  difficul- 
ties as  they  arose  in  Parliament,  and  his  tact  in  meeting  by  judicious 
compromises  the  objections  of  his  opponents.  His  courtesy  to  me 
never  failed  even  under  the  most  trying  circumstances.  My  first 
introduction  to  him  was  so  curious  that  it  may  be  worth  telling. 
I  think  it  was  on  Wednesday,  November1  13,  1867  that  Mr. 
Walpole,  then  Home  Secretary,  gave  me  to  read  a  copy  of  the 
Reform  Bill  which  had  been  prepared  by  a  parliamentary  agent. 
I  expressed  to  him  an  opinion  unfavourable  to  the  bill  as  drawn. 
This  opinion  was  repeated  to  Lord  Derby,  who  sent  for  me  to 
the  House  of  Lords  on  Thursday  14th.  I  told  him  in  substance 
what  I  had  told  Mr.  Walpole.  Lord  Derby  said  it  was  too 
late  to  take  any  steps  to  alter  the  Bill  to  the  extent  which  I 

i  This  is  a  slip.    It  was  in  March,  1867. 


RULES  FOR  THE  GUIDANCE  OF  DRAFTSMEN     105 

wished,  and  I  undertook  at  his  request  to  communicate  with  the 
draftsman  and  to  tell  him  to  proceed  with  his  work.  I  returned 
to  my  office  and  was  actually  engaged  in  writing  the  letter  when 
Mr.  Disraeli's  secretary,  now  Lord  Rowton,  came  in  and  told  me 
as  an  instruction  from  Mr.  Disraeli  to  entirely  redraft  the  bill, 
and  added  that  the  bill  must  be  ready  on  Saturday,  16th.  Accord- 
ingly next  day  I  took  the  bill  in  hand,  and  working  with  two 
shorthand  writers  from  ten  till  six,  I  completed  it.  The  bill  was 
printed  during  the  night  and  was  laid  before  the  Cabinet  on  Satur- 
day. It  was  considered  on  Monday  by  Mr.  Disraeli ;  he  personally 
instructed  me  in  the  matter  and  the  bill  was  circulated  to  the 
House  of  Commons  on  Tuesday.  This  tour  de  force  in  draftsman- 
ship could  not  have  been  accomplished,  had  I  not  been  saturated, 
so  to  speak,  with  reform  from  my  preparation  of  the  Franchise 
Bill  of  1866,  when  I  prepared  for  the  Government  a  complete  series 
of  memoranda  and  notes  relating  to  the  franchise,  including  a  com- 
parison between  the  municipal  and  Parliamentary  franchises  with 
a  view  to  showing  the  advantage  which  would  result  from  assimi- 
lating the  Parliamentary  franchise  to  the  municipal  franchise. 
The  work  at  the  time  had  seemed  to  be  useless,  for,  as  is  well  known, 
the  Franchise  Bill  of  1866  never  became  law. 

Having  described  his  experiences  Lord  Thring  goes  on  to 
sum  up  his  practical  conclusions. 

The  sum  of  the  whole  matter  is  this,  that  to  prepare  a  good 
bill  the  draftsman  must  receive  sufficient  instructions,  but  they 
will  necessarily  be  short,  and  he  must  exercise  a  very  large  discre- 
tion in  filling  up  the  gaps.  He  ought  to  draw  a  memorandum  and 
to  supply  notes  furnishing  the  minister  with  information  on  all 
technical  points. 

The  bill  should  be  clear  and  should  state  at  the  very  commence- 
ment the  important  principle  of  the  measure  and  the  greatest  pains 
should  be  taken  to  separate  the  material  from  the  comparatively 
immaterial  provisions. 

Before  commencing  to  draw  the  bill  the  draftsman  should  ask 
the  minister  on  what  questions  he  wishes  to  take  divisions,  and 
these  points  should  be  placed  at  the  beginning  of  the  bill  in  the 


106  THE  MECHANICS  OF  LAW  MAKING 

clearest  and  most  concise  form  so  that  it  should  not  be  possible 
that  a  division  should  take  place  on  a  complicated  issue.  Above 
all,  referential  legislation  must,  as  far  as  possible,  be  avoided.  It 
is  not  fair  to  a  legislative  assembly  that  they  should,  as  a  general 
rule,  have  to  look  beyond  the  four  corners  of  the  bill  in  order  to 
comprehend  its  meaning. 

Then  follows  a  warning  which  the  youthful  draftsman 
should  take  to  heart  and  which  the  experience  of  the  older 
draftsmen  will  often  justify. 

It  may  be  well  to  warn  the  draftsman  that  in  his  case  virtue 
will,  for  the  most  part,  be  its  own  reward,  and  that  after  all  the 
pains  that  have  been  bestowed  on  the  preparation  of  a  bill,  every 
Lycurgus  and  Solon  sitting  on  the  back  benches  will  denounce  it 
as  a  crude  and  undigested  measure,  a  monument  of  ignorance  and 
stupidity.  Moreover,  when  the  bill  has  become  law,  it  will  have 
to  run  the  gauntlet  of  the  judicial  bench,  whose  ermined  dignitaries 
delight  in  pointing  out  the  shortcomings  of  the  legislature  in  ap- 
proving such  an  imperfect  performance. 

Are  these  strictures  on  the  judicial  bench  too  severe? 
Remember  that  they  came  from  an  old  draftsman  still  smart- 
ing under  the  lash.  I  wonder  whether  the  industrious  and 
possibly  conscientious  draftsmen  of  the  eighteenth  century 
who  compiled  Acts  of  Parliament  in  the  orthodox  convey- 
ancing jargon  of  the  day,  and  whom  Bentham  so  heavily 
belabours,  used  similar  language  about  him.  And  it  must 
be  borne  in  mind  that  Lord  Thring's  condemnation  of 
judicial  criticism  is  not  unqualified.  He  admits  frankly 
that  some  judges,  and  those  not  the  least  eminent,  including 
the  late  Sir  James  Fitzjames  Stephen,  who  had  enjoyed 
the  advantages  of  having  been  a  draftsman  before  he  was  a 
judge,  both  expressed  a  different  and  juster  view  of  the 
draftsman's  position  and  made  greater  allowance  for  the 
difficulties  which  he  has  to  encounter  and  surmount. 


RULES  FOR  THE  GUIDANCE  OF  DRAFTSMEN       107 

He  gives  as  an  instance  of  the  labour  which  the  preparation 
of  an  Act  of  Parliament  may  involve,  the  Army  Act  of  1881. 
This  Act,  which  is  a  standing  form,  in  force  only  for  a  year 
but  annually  renewed  with  or  without  amendments,  has 
taken  the  place  of  the  old  Mutiny  Acts,  which  had  to  be 
re-enacted  as  new  laws  every  year.  For  many  generations 
nobody  thought  of  reading  the  Mutiny  Acts.  They  were 
in  the  old  form,  and  everybody  took  it  for  granted  that  they 
were  all  right  and  merely  reproduced  the  existing  law.  You 
may  perhaps  know  that  each  Mutiny  Act  used  to  come  into 
operation,  as  the  Army  Act  still  does,  at  different  times  in 
different  parts  of  the  world.  And  I  remember  discovering 
in  one  of  the  very  last  of  them  a  provision  that  it  should 
come  into  operation  at  a  specified  date  in  Spain  and  Portugal. 
This  provision  had  been  inserted  at  the  time  of  the  Peninsu- 
lar War,  and,  like  the  sentry  in  front  of  the  guarded  flower 
in  the  old  Russian  story,  had  remained  unnoticed  ever  since. 
Nobody  had  taken  the  trouble,  or  had  thought  it  worth 
while,  to  strike  it  out,  and  there  it  stuck  till  near  the  end 
of  the  nineteenth  century.  Well,  this  easy  and  comfortable 
way  of  re-enacting  the  Mutiny  Act  went  on  for  many  gen- 
erations. At  last,  about  the  time  when  Irish  obstruction 
began  to  make  itself  a  serious  factor  in  English  legislation, 
Mr.  Parnell  and  his  friends  realised  that  the  Mutiny  Act 
might  be  utilised  as  an  instrument  of  obstruction.  They 
studied  it,  found  that  it  was  full  of  defects,  filled  the  notice 
paper  with  pages  of  amendments,  and  spent  hours  and 
hours,  night  after  night,  in  discussing  these  amendments 
with  great  ingenuity  and  pertinacity.  This  became  intol- 
erable, and  the  government  of  the  day  came  to  the  conclu- 
sion that  they  must  bring  into  operation  a  scheme  which 
had  been  proposed  by  Mr.  Card  well,  when  Minister  for 


108  THE  MECHANICS  OF  LAW  MAKING 

War,  for  revising  the  military  law  and  enacting  it  in  a  more 
satisfactory  form.  Lord  Thring  shall  tell  in  his  own  words 
what  followed :  — 

The  Army  Act  of  1881,  like  the  siege  of  Troy,  took  ten  years 
before  it  was  brought  to  a  conclusion.  Instructions  were  given  to 
me  by  Mr.  Cardwell  in  1867;  a  bill  was  prepared,  but  was  not 
proceeded  with ;  in  1872  the  subject  was  revived  and  a  complete 
scheme  was  prepared  for  consolidating  the  Mutiny  Act  and  the 
Articles  of  War.  This  scheme  was  partially  considered  by  the  War 
Office  in  1873.  It  was  then  again  laid  aside  till  1877,  when  a  short 
interval  of  discussion  occurred,  after  which  it  was  once  more  shelved 
until  1878,  when  a  select  committee  was  appointed  by  the  Secre- 
tary of  War  to  consider  the  bill.  This  committee  gave  a  general 
approval  to  the  bill,  and  in  1879  an  almost  identical  measure  was 
at  last  introduced  into  Parliament  and  passed. 

Some  idea  of  the  labour  involved  in  preparing  this  measure  may 
be  formed  from  the  fact  that  the  papers  written  to  explain  the  law 
alone  fill  a  folio  volume  of  1067  printed  pages.  The  Act  was  after- 
wards slightly  amended,  and  consolidated,  and  under  the  title  of 
the  Army  Act  is  annually  brought  into  operation  by  a  short  special 
Act. 

Have  I  detained  you  too  long  with  quotations  from  Lord 
Thring's  introduction  to  his  little  book  ?  I  hope  not  and  I 
think  not.  What  I  have  been  trying  to  do  is  to  give  you  some 
notion  of  what  may  possibly  be  learnt  from  English  experi- 
ence in  drafting  Acts  of  Parliament  and  improving  their 
form,  and  no  one  had  longer,  wider,  more  varied,  or  riper 
experience  in  this  department  than  the  late  Lord  Thring. 

If  I  were  conducting  a  practical  class,  what  the  Germans 
call  a  Seminar,  in  the  study  of  the  art  and  craft  of  preparing 
and  framing  statutory  enactments,  I  should  be  disposed  to 
take  as  my  textbook  Lord  Thring's  little  book.  And  I 
should  do  so  because  it  not  only  lays  down  admirable  prac- 
tical rules  as  to  the  arrangement  of  the  subject-matter  of  an 


RULES  FOR  THE  GUIDANCE  OF  DRAFTSMEN       109 

Act,  and  as  to  the  composition  of  sentences,  but  also  illus- 
trates those  rules  by  examples  showing  the  kind  of  arrange- 
ment and  language  which  will  be  found  useful  in  particular 
classes  of  cases.  But  I  am  not  standing  here  in  a  profes- 
sorial capacity,  and  therefore  I  shall  content  myself  with 
making  a  few  remarks  and  giving  a  few  hints  and  warnings, 
based  on  my  own  personal  experiences.  I  must,  however, 
remind  you  again,  as  I  have  reminded  you  before,  that  these 
remarks  are  suggested  by  English  conditions  of  legislation, 
and  that  American  conditions  are  widely  different. 

First,  as  to  the  subject  of  style  and  language.  It  may 
be  said  that  the  rules  of  good  drafting  are  simply  the  rules 
of  literary  composition,  as  applied  to  cases  where  precision 
of  language  is  required,  and  that  accordingly  any  one  who 
is  competent  to  draw  in  apt  and  precise  terms  a  conveyance, 
a  commercial  contract,  or  a  pleading,  is  competent  to  draw  an 
Act  of  Parliament.  But  this  is  obviously  a  superficial  view. 

In  the  eighteenth  century,  and  even  later,  a  good  many 
English  statutes  appear  to  have  been  drawn  by  conveyancers, 
and  readers  of  Bentham  will  remember  what  he  says  about 
the  conveyancing  style.  That  style  has  been  improved 
and  shortened  since  Bentham's  time,  though  I  think  it  is 
still  capable  of  much  improvement.  But  even  if  it  were 
more  free  from  the  charges  of  redundancy,  prolixity,  and 
repetition,  it  must  be  borne  in  mind  that  the  rules  and  tradi- 
tions of  good  conveyancing  are  not  applicable,  without 
serious  modifications,  to  parliamentary  drafting.  The 
framer  of  even  the  most  complicated  settlement  has  to  pro- 
vide for  a  limited  number  of  cases  or  contingencies,  which 
he  can  enumerate  exhaustively,  and  for  which  it  is  some- 
times desirable  that  he  should  make  specific  rather  than 
general  provision.  But  the  framer  of  an  Act  of  Parliament 


110  THE  MECHANICS  OF  LAW  MAKING 

has  to  lay  down  rules  which  are  to  be  in  force  for  an  indefi- 
nite time,  and  to  be  applicable  to  conditions  and  circum- 
stances of  which  the  existing  range  and  variety  are  of  for- 
midable complexity,  and  the  modifications  of  which  in  the 
future  are  impossible  to  predict.  Practice  in  the  prepara- 
tion of  such  instruments  as  the  articles  of  association  of  a 
company,  to  which  I  suppose  in  your  country  corporation 
charters  more  or  less  correspond,  is  of  greater  value  than 
practice  in  ordinary  conveyancing,  but  even  here  the  range 
and  variety  of  circumstances  which  have  to  be  contemplated 
is  obviously  much  narrower  than  in  the  case  of  a  general 
law.  If  a  parliamentary  draftsman  is  to  do  his  work  well, 
he  must  be  something  more  than  a  mere  draftsman.  He 
must  have  constructive  imagination,  the  power  to  visualise 
things  in  the  concrete,  and  to  foresee  whether  and  how  a 
paper  scheme  will  work  out  in  practice. 

Again,  the  draftsman  of  an  Act  of  Parliament  has  to  pre- 
pare a  document  which  has  to  be  considered  and  possibly 
modified  by  a  large  number  of  persons,  over  which  he  can 
only  exercise  a  very  imperfect  control  after  it  leaves  his 
hands,  and  the  provisions  of  which  may  have  to  be  settled 
on  the  spur  of  the  moment  and  in  the  heat  of  debate.  If  its 
several  parts  are  too  tightly  dovetailed  together,  if  it  is  so 
constructed  that  a  modification  of  one  part  necessarily 
involves  numerous  modifications  of  other  parts,  an  amend- 
ment made  in  the  course  of  debate  may  throw  it  hopelessly 
out  of  gear.  For  these  reasons,  the  parliamentary  drafts- 
man is  obliged,  by  the  conditions  of  his  craft,  to  employ  a 
generality  of  expression,  and  to  give  his  framework  an  elas- 
ticity of  construction,  which  would  shock  the  conveyancer. 

Then,  between  the  point  of  view  of  the  lawyer  and  the 
point  of  view  of  the  legislator  there  is  a  material  difference. 


RULES  FOR  THE  GUIDANCE  OF  DRAFTSMEN       111 

The  lawyer  proceeds  on  the  basis  of  the  existing  law.  He 
endeavours  to  ascertain  what  that  law  is,  and  to  apply  it 
to  the  facts.  The  legislator  proceeds  on  the  view  that  the 
existing  law  is  defective  or  insufficient,  and  considers  how 
the  law  should  be  changed  in  order  to  meet  the  requirements 
of  the  case.  It  is  often  difficult  for  the  trained  lawyer  to 
change  his  accustomed  point  of  view,  and  consider,  not  merely 
what  the  law  is,  but  what  it  ought  to  be. 

Lastly,  the  draftsman  of  a  public  Act  of  Parliament  has 
to  be  guided  by  rules,  not  only  of  logic,  but  of  rhetoric.  A 
bill  for  such  an  Act  may  be  regarded  from  two  points  of 
view.  From  one  point  of  view  it  is  a  future  law.  From 
another  point  of  view  it  is  a  proposal  submitted  for  the 
favourable  consideration  of  a  popular  assembly.  And  the 
two  points  of  view  are  not  always  consistent.  The  mode  of 
expression  and  arrangement  which  is  most  suitable  to  offi- 
cials who  have  to  administer  the  law,  or  to  lawyers  who  have 
to  explain  the  law,  is  not  always  that  which  is  most  suitable 
to  the  minister  or  other  member  of  Parliament,  who  has  to 
pass  the  law.  Lord  Thring's  aphorism,  "  that  bills  are  made 
to  pass,  as  razors  are  made  to  sell/'  expresses  an  important 
half-truth.  The  minister  in  charge  of  a  bill  will  often 
insist,  and  wisely  insist,  on  departure  from  logical  arrange- 
ment with  reference  to  exigencies  of  discussion.  He  will 
have  considered  how  he  intends  to  present  his  proposals  to 
Parliament,  and  to  defend  them  before  the  public,  and  will 
wish  to  have  his  bill  so  arranged  and  expressed  as  to  make  it 
a  suitable  text  for  his  speech.  If  the  measure  is  at  all  com- 
plicated, he  will  desire  to  have  its  leading  principles  embodied 
in  the  opening  clause  or  clauses,  so  that  when  the  first  fence 
is  cleared,  the  remainder  of  the  course  may  be  comparatively 
easy.  In  settling  the  order  of  the  following  clauses,  he  will 


112  THE  MECHANICS  OF  LAW  MAKING 

consider  what  kind  of  opposition,  and  from  what  quarter, 
they  are  likely  to  evoke.  He  will  deprecate  unnecessary 
length,  and  will  often  wish  to  have  his  measure  so  drawn 
that  it  can  be  contained  in  a  single  clause  or  appear  on  a 
single  page.  He  will  prefer  a  few  long  clauses  to  many 
short  ones,  bearing  in  mind  that  each  clause  has,  as  a  rule, 
to  be  separately  put  in  committee.  His  theoretical  objec- 
tions to  legislation  by  reference  will  often  yield  to  consider- 
ations of  brevity.  He  will  eschew  technical  terms,  except 
where  they  are  clearly  necessary,  remembering  that  his  pro- 
posals will  have  to  be  expounded  to,  and  understood  by,  an 
assembly  of  laymen.  He  will  bear  in  mind  that  members 
of  Parliament,  like  other  Englishmen,  have  a  great  respect 
for  precedents,  and  will  prefer  a  form  of  expression  borrowed 
from,  or  having  an  analogy  in,  another  Act  of  Parliament. 
And  he  will  have  learnt  that  there  are  certain  provisions 
and  expressions  at  which  Parliament  instinctively  shies, 
others  which  it  readily  accepts.  The  draftsman  has,  of 
course,  to  bear  in  mind  all  these  considerations.  Indeed,  it 
may  be  said,  without  disrespect,  that  he  has  to  study  the 
idiosyncrasies  of  Parliament  much  as  a  nisi  prius  barrister 
has  to  study  the  idiosyncrasies  of  a  common  jury. 

Having  said  thus  much  on  the  general  subject  of  style, 
may  I  give  you  some  of  the  practical  hints  and  suggestions 
which  I  used  to  find  useful  to  bear  in  mind  when  I  was  en- 
gaged in  parliamentary  drafting  and  which  I  tried  to  impress 
on  the  minds  of  those  who  worked  under  me?  They  are 
much  to  the  same  effect  as  those  which  are  to  be  found  in 
Lord  Thring's  useful  little  book,  but  I  will  express  them  in 
my  own  language.  You  will  forgive  their  didactic  character, 
and  may  imagine,  if  you  like,  that  I  am  addressing  an  Eng- 
lish draftsman. 


RULES  FOR  THE  GUIDANCE  OF  DRAFTSMEN    113 

Before  beginning  to  prepare  a  bill  take  care  to  master 
the  subject-matter.  Remember  that  where  a  doubtful 
question  of  construction  arises,  the  courts  are  entitled  to 
consider  the  previous  law  and  practice,  the  mischief  or 
defects  which  the  law  was  intended  to  remove,  and  the 
nature  of  the  remedy  proposed.  So,  before  devising  a  remedy, 
you  must  know  the  existing  law  and  practice,  and  have  a 
clear  conception  of  the  mischief  or  defects  for  which  the 
remedy  is  required. 

You  will  find  the  law  in  Acts  of  Parliament,  in  judicial 
decisions,  and  in  legal  textbooks.  The  practice,  that  is 
to  say,  the  way  in  which  the  law  actually  works,  is  less 
easily  learnt.  You  may  often  obtain  information  from 
blue  books,  from  debates  in  Parliament,  and  from  similar 
sources,  but  the  information  you  want  is  not  always  avail- 
able in  a  written  form.  It  must  often  be  derived  from  per- 
sonal experience,  or  supplied  by  persons  having  such  expe- 
rience. 

The  defects  which  the  proposed  legislation  is  intended  to 
remedy  are  usually  to  be  gathered  from  parliamentary  and 
other  discussions  and  from  reports  of  royal  commissions 
or  parliamentary  or  departmental  committees. 

You  should  consider  with  respect  to  each  proposed  enact- 
ment whether  parliamentary  legislation  is  really  required, 
and  whether  the  object  might  not  be  attained  by  adminis- 
trative regulations  or  by  subordinate  legislation,  such  as 
orders  in  council  or  statutory  rules,  and  sometimes  whether, 
if  legislation  is  required,  it  should  not  be  embodied  in  a  local 
Act. 

For  the  purpose  of  studying  the  Acts  I  used  to  find  it  the 
most  convenient  plan  to  obtain  and  fasten  together  King's 
Printer's  copies  of  the  several  Acts,  and  then  strike  out  those 


114  THE  MECHANICS  OF  LAW  MAKING 

portions  which  have  been  repealed  by  subsequent  legisla- 
tion, adding  marginal  notes  to  show  how  they  have  been 
repealed. 

You  will  often  find  it  useful  to  have  lists  of  relevant  judi- 
cial decisions,  arranged  in  chronological  order,  and  showing 
the  point  decided  in  each  case.  Useful,  also,  will  be  a  short 
bibliography  of  the  blue  books,  textbooks,  etc.,  bearing  on 
the  subject  of  the  measure. 

It  will  save  much  trouble  if  you  embody  in  a  memorandum 
the  results  of  the  information  you  have  collected.  Several 
documents  of  this  kind  may  be  required.  It  may  be  neces- 
sary to  trace  historically  the  course  of  previous  legislation, 
and  of  discussions  in  Parliament  and  elsewhere,  and  to  show 
how  the  existing  statute  law  has  been  interpreted  by  judicial 
decisions  and  has  been  construed  in  practice.  A  memoran- 
dum stating  the  leading  features  of  the  proposed  legislation, 
and  raising  clearly  the  questions  of  principle  to  be  decided, 
will  usually  be  required.  This  will  be  useful  for  discussions 
preceding  the  introduction  of  the  bill  and  also  as  a  brief 
for  the  speech  required  on  introduction  or  second  reading. 
In  the  case  of  a  government  measure,  a  shorter  memoran- 
dum, dealing  only  with  the  main  points,  may  be  required  for 
the  use  of  the  Cabinet,  and  a  still  shorter  memorandum 
may  in  some  cases  be  prefixed  with  advantage  to  the  bill  as 
introduced.  Information  of  a  more  detailed  kind  should  be 
embodied  in  the  notes  on  the  several  clauses,  and  in  pre- 
paring these  notes  you  should  take  care  to  quote  fully,  and 
to  give  precise  references  to,  the  enactments  bearing  on  the 
subject-matter  of  each  clause,  and  to  supply  such  other 
particulars  as  may  be  required  for  discussion  in  committee 
or  in  the  preliminary  conferences.  You  should  give  the 
information  in  such  a  form  as  to  be  available  for  immediate 


RULES  FOR  THE  GUIDANCE  OF  DRAFTSMEN     115 

use,  and  without  reference  to  books  or  other  documents.  A 
statement  in  a  tabular  form  or  otherwise  of  the  authorities 
who  will  be  charged  with  the  execution  of  the  law,  and  of 
their  powers  and  duties,  will  often  be  of  great  value. 

When  the  measure  is  complex,  there  should  be,  in  the  first 
instance,  a  "  scheme  "  or  "  heads  of  a  bill "  such  as  can  be 
subsequently  elaborated  into  clauses. 

You  will  have  to  consider  the  arrangement  of  a  bill  both 
from  the  parliamentary  and  from  the  administrative  point 
of  view. 

If  the  bill  is  a  fighting  bill,  the  arrangement  is  of  great 
political  importance.  You  should  frame  the  bill  so  that  the 
main  issues  which  its  proposals  raise  are  disentangled  from 
subordinate  issues,  are  placed  in  the  forefront  of  the  meas- 
ure, and  are  arranged  in  such  a  manner  as  to  facilitate  dis- 
cussion in  committee.  Where  the  decision  of  an  issue  raised 
by  one  clause  depends  on  the  decision  of  an  issue  raised  by 
another  clause,  the  latter  clause  must  come  first.  You 
should  take  care  also  that  one  clause  does  not  raise  incidently 
an  issue  which  can  be  more  conveniently  discussed  in  con- 
nexion with  a  later  clause.  Subordinate  matters  should  be 
dealt  with  in  later  parts  of  the  bill.  Matters  of  detail  should 
be  relegated  to  schedules  or  left  to  be  provided  for  by  rules. 

So  far  as  parliamentary  exigencies  will  admit,  you  should 
arrange  the  subject-matter  of  a  bill  with  reference  to  adminis- 
trative convenience ;  in  other  words,  its  arrangement  should 
be  orderly  and  logical. 

Normal  and  general  provisions  should  be  placed  first. 
Special,  exceptional,  and  local  provisions  should  be  placed 
towards  the  end. 

Temporary  and  transitional  provisions  should  be  placed 
at  the  end  of  the  bill,  because,  when  they  are  spent,  they 


116  THE  MECHANICS  OF  LAW  MAKING 

can  be  repealed  without  making  gaps  in  the  main  body  of 
the  Act. 

As  a  general  rule,  it  is  convenient  to  lay  down,  first  the 
rules  of  law  to  be  observed,  and  then  to  state  the  authorities 
by  which  they  are  to  be  administered  and  the  procedure  to 
be  followed  in  administering  them. 

You  can  make  the  framework  of  a  bill  more  intelligible 
by  dividing  it  into  parts  and  by  grouping  clauses  under  italic 
headings.  But  you  should  avoid  excessive  subdivision. 
As  a  rule,,  a  bill  should  not  be  divided  into  parts  unless  the 
subjects  of  the  parts  are  so  different  that  they  might  appro- 
priately be  embodied  in  separate  Acts.  The  division  of  an 
Act  into  parts  may  affect  its  construction  by  indicating 
the  scheme  of  arrangement. 

The  printer  will,  if  so  directed,  prefix  to  the  bill  an  '  arrange- 
ment of  clauses'  made  up  from  the  marginal  notes.  You 
should  study  this  table  for  the  purpose  of  testing  the  con- 
venience and  logical  sequence  of  the  arrangement  adopted. 

Pay  attention  to  the  framing  of  your  marginal  notes  to 
clauses.  A  marginal  note  should  be  short  and  distinctive. 
It  should  be  general,  and  usually  in  a  substantival  form, 
and  should  describe,  but  not  attempt  to  summarise,  the 
contents  of  the  clause  to  which  it  relates.  For  instance,  a 
marginal  note  should  run:  "Power  of  local  authority  to, 
etc.,"  and  not  "  Local  authority  may,  etc." 

The  marginal  note  often  supplies  a  useful  test  of  the 
question  whether  a  subject  should  be  dealt  with  in  one  or 
more  clauses.  If  the  marginal  note  cannot  be  made  short 
without  being  vague,  or  distinctive  without  being  long,  the 
presumption  is  that  more  clauses  than  one  are  required. 

A  long  and  complex  clause  should  be  cut  up  into  subsec- 
tions. 


RULES  FOR  THE  GUIDANCE  OF  DRAFTSMEN     117 

Each  sentence  should  be  as  short  and  simple  as  possible. 

The  rules  to  be  laid  down  will  be  either  general  or  special, 
and  either  absolute  or  qualified. 

Where  a  rule  is  to  apply  only  to  a  particular  case  or  set 
of  circumstances,  you  will  usually  find  it  most  convenient 
to  state  the  case  or  set  of  circumstances  first  and  let  the  rule 
follow.  But  where  the  rule  is  to  apply  to  several  cases  or 
sets  of  circumstances,  it  is  often  convenient  to  state  the  rule 
first  and  enumerate  the  cases  afterwards. 

Where  the  rule  is  to  be  subject  to  qualifications,  excep- 
tions, or  restrictions,  these  should  follow  the  statement  of 
the  rule.  But,  it  is  often  convenient  to  prefix  to  the  rule 
words  indicating  that  it  is  to  be  so  qualified. 

Avoid  enumeration  of  particulars.  It  is  almost  impos- 
sible to  make  the  enumeration  exhaustive,  and  accidental 
omission  may  be  construed  as  implying  deliberate  exclusion, 
in  accordance  with  the  maxim  Expressio  unius  est  exclusio 
alterius. 

State  each  rule  in  general  terms,  but,  so  far  as  practicable, 
test  its  application  to  particular  cases  for  the  purpose  of 
seeing  how  far  it  will  work  in  each  case. 

The  language  of  the  bill  should  be  precise,  but  not  too 
technical.  An  Act  of  Parliament  has  to  be  interpreted,  in 
cases  of  difficulty,  by  legal  experts,  but  it  must  be  passed 
by  laymen,  be  administered  by  laymen,  and  operate  on  lay- 
men. Therefore  it  should  be  expressed  in  language  intelli- 
gible by  the  lay  folk. 

In  some  cases  the  compromise  between  popular  and  tech- 
nical language  may  be  effected  by  means  of  a  definition. 
But  definitions  are  dangerous  and  should  be  sparingly 
used. 

Do  not  use  more  words  than  are  necessary  to  make  the 


118  THE  MECHANICS  OF  LAW  MAKING 

meaning  clear.  Every  superfluous  word  may  raise  a  debate 
in  the  legislature,  and  a  discussion  in  court. 

Do  not  use  different  words  to  express  the  same  thing. 

Do  not  use  the  same  words  with  different  meanings. 

A  statute  is  intended  to  confer  rights  and  impose  duties. 
Make  it  quite  clear  on  whom  the  rights  are  conferred  and 
the  duties  are  imposed.  For  this  purpose  use,  as  a  rule,  the 
active  form  ("  may  do  "  or  "  shall  do  ")  and  avoid  the  passive 
form  ("may  be  done"  or  "shall  be  done"). 

Lastly,  the  English  draftsman  must  always  bear  in  mind 
carefully  the  provisions  of  the  Interpretation  Act,  1889. 

I  was  responsible  for  drafting  this  Act,  and  therefore  I 
should  like  to  say  a  few  words  about  it. 

Bentham  long  ago  preached  the  utility  of  definitions  for 
avoiding,  or  reducing,  the  amount  of  prolixity,  repetitions, 
and  tautology  in  the  language  of  Acts  of  Parliament,  and 
also  as  a  means  of  guarding  against  the  danger  of  using 
different  words  to  express  the  same  thing  in  different  parts 
of  an  Act.  Find  a  suitable  definition,  he  said,  of  a  phrase 
or  combination  of  words  which  will  be  of  frequent  recurrence 
in  your  law,  and  stick  to  that  definition.  By  so  doing  you 
will  avoid  cumbrous  repetitions  and  secure  uniformity  of 
language.  Bentham's  suggestions  were  adopted  by  many 
of  the  draftsmen  who  learnt  from  his  teaching,  found  their 
way  into  Acts  of  Parliament,  and  were  not  only  used,  but 
used  to  an  undue,  excessive,  and  unreasonable  extent.  You 
would  find  in  each  of  a  large  number  of  Acts  a  long  list  of 
definitions,  forming  a  special  dictionary  for  the  interpreta- 
tion of  that  particular  Act.  The  inconvenience  arising  from 
the  multiplication  of  these  special  dictionaries  was  soon 
perceived,  and  in  1850  Lord  Brougham  carried  an  Act  which 
was  commonly  known  as  Brougham's  Act,  generalising  some 


RULES  FOR  THE  GUIDANCE  OF  DRAFTSMEN     119 

of  the  more  important  statutory  definitions  then  in  common 
use.  It  enacted  that  in  all  future  Acts  particular  phrases 
should  have  particular  meanings  unless  the  contrary  inten- 
tion appears  from  the  Act.  For  instance,  one  of  the  earlier 
sections  of  Brougham's  Act  enacts  that  in  every  future  Act, 
words  importing  the  masculine  gender  shall  include  females, 
words  in  the  singular  shall  include  the  plural,  and  words  in 
the  plural  shall  include  the  singular.  A  provision  to  this 
effect  had  become  common  in  Acts  of  Parliament  passed  dur- 
ing the  thirties  and  forties  of  the  last  century,  and  you  will 
see  at  once  what  a  saving  of  words  it  effected.  Now  the 
Interpretation  Act  of  1889  is  an  expansion,  but  a  very  large 
expansion,  of  Brougham's  Act.  It  embodies  the  definitions 
in  Brougham's  Act,  and  adds  a  great  many  other  definitions 
and  general  rules  of  construction.  I  framed  it  on  purely 
empirical  lines.  I  got  my  clerks  to  make  comprehensive 
lists  of  the  numerous  definitions  to  be  found  in  Acts  of  Par- 
liament, selected  those  which  had  been  found  by  experience 
to  be  convenient  and  therefore  had  passed  into  common  use, 
touched  some  of  them  up  here  and  there  where  I  thought 
them  capable  of  improvement  in  form,  and  embodied  them 
in  the  new  Act.  I  believe  that  the  Act  has  been  very  useful, 
and  it  has  certainly  tended  to  uniformity  of  language.  Spe- 
cial definitions  are  still  often  necessary,  though  in  my  opinion 
they  should  be  sparingly  used.  But  a  vast  number  of  special 
definitions  which  have  been  repeated  over  and  over  again  in 
particular  Acts  have  disappeared  from  the  modern  English 
statute  book. 

>  The  English  draftsman  has  to  consider  not  only  the  stat- 
utory rules  of  interpretation  which  are  to  be  found  in  the 
Act  of  1889,  but  also  the  general  rules  which  are  based  on 
judicial  decisions  and  which  are  to  be  found  in  a  good  many 


120  THE  MECHANICS  OF  LAW  MAKING 

useful  textbooks  on  the  interpretation  of  statutes.    Among 
the  most  important  of  these  rules  are :  — 

1.  The  rule  that  a  statute  must  be  read  as  a  whole.    There- 
fore the  language  of  one  section  may  affect  the  construction 
of  another. 

2.  The  rule  that  a  statute  may  be  interpreted  by  reference 
to  other  statutes  dealing  with  the  same  or  a  similar  subject- 
matter.    Hence  the  language  of  those  statutes  must  be 
studied.    The  meaning  attached  to  a  particular  expression 
in  one  statute,  either  by  definition  or  by  judicial  decision, 
may  be  attached  to  it  in  another.     And  variation  of  language 
may  be  construed  as  indicating  change  of  intention. 

3.  The  general  rule  that  special  provisions  will  control 
general  provisions. 

4.  The  similar  rule  that  where  particular  words  are  fol- 
lowed by  general  words  (horse,  cow,  or  other  animal),  the 
generality  of  the  latter  will  be  limited  by  reference  to  the 
former  ("Eiusdem  generis"  rule). 

5.  The  general  rule,  subject  to  important  exceptions,  that 
a  guilty  mind  is  an  essential  element  in  a  breach  of  a  criminal 
or  penal  law.     It  should,  therefore,  be  considered  whether 
the  words  "wilfully"  or  " knowingly"  should  be  inserted,  and 
whether,  if  not  inserted,  they  would  be  implied,  unless  ex- 
pressly negatived. 

6.  The  presumption  that  the  legislature  does  not  intend 
any  alteration  in  the  rules  or  principles  of  the  common  law 
beyond  what  it  expressly  declares. 

7.  The  presumption  against  any  intention  to  contravene 
a  rule  of  international  law. 

8.  The  presumption  against  the  retrospective  operation 
of  a  statute,  subject  to  an  exception  as  to  enactments  which 
affect  only  the  practice  and  procedure  of  the  courts. 


RULES  FOR  THE  GUIDANCE  OF  DRAFTSMEN    121 

9.  The  rule  that  a  power  conferred  on  a  public  authority 
may  be  construed  as  a  duty  imposed  on  that  authority 
("  may  "  =  "shall"). 

Let  me  add  a  few  more  rules,  not  rules  of  construction  or 
interpretation,  but  maxims  or  cautions,  which  the  drafts- 
man may  find  useful. 

Remember  that  a  right  or  duty  is  incomplete  without  what 
is  commonly  called  a  sanction ;  that  is  to  say,  the  evil  which 
may  attend  a  violation  of  the  right  or  a  breach  of  the  duty. 
"  For  it  is  but  lost  labour,"  remarks  Blackstone,  "to  say,  'Do 
this,  or  avoid  that/  unless  we  also  declare,  'This  shall  be 
the  consequence  of  your  noncompliance. "  The  sanction 
may  be  either  civil  or  criminal,  or  both.  Where  a  civil 
sanction  only  is  required,  the  courts  will  usually  have  power 
to  apply  the  appropriate  remedy,  without  express  words. 
And  the  enactment  should  be  so  expressed  as  to  give  the 
right,  not  the  remedy,  to  say  that  a  person  may  do  a  particu- 
lar thing,  not  that  he  may  bring  a  particular  action  or  obtain 
from  the  court  a  particular  order.  In  some  cases,  however, 
it  may  be  necessary  to  enlarge  the  jurisdiction  of  a  particu- 
lar kind  of  court,  for  the  purpose  of  bringing  the  enforcement 
of  a  right  or  duty  within  that  jurisdiction.  And  in  other 
cases  it  may  be  necessary  to  devise  or  specify  a  particular 
form  of  remedy.  But  in  such  cases  the  details  of  procedure 
would,  in  England,  be  left  to  be  regulated  by  rules  of  court. 
The  rules  as  to  the  criminal  sanction  are  different.  If  it  is 
proposed  by  a  bill  to  make  an  Act  penal,  then  the  criminal 
sanction  should  be  imposed  expressly  by  the  bill,  for  it  is 
not  desirable  to  rely  on  the  English  doctrine  that  any  breach 
of  an  Act  of  Parliament  is  a  misdemeanour.  Where  a  duty 
is  imposed  on  a  public  authority,  you  should  consider  whether 
the  duty  is  to  be  enforceable  by  the  intervention  of  a  superior 


122  THE  MECHANICS  OF  LAW  MAKING 

administrative  authority,  such  as  a  government  department, 
or  by  the  action  of  a  court  of  law,  or  by  both. 

Take  care  that  the  penalties  imposed  are  sufficient  but  not 
excessive.  The  temptation  to  include  several  different  offences 
in  the  same  clause  or  to  impose  the  same  penalty  for  them 
should  be  avoided,  unless  it  is  clear  that  they  are  of  the  like 
nature  and  gravity.  In  some  cases,  for  instance,  guilty 
knowledge,  the  'scienter,'  ought  to  be  an  essential  element  of 
an  offence ;  in  other  cases  not. 

Where  the  administration  of  a  measure  will  require  new 
staff  or  additional  expenditure,  take  care  that  due  provision 
is  made  for  these  purposes. 


VII 

FORMS  OF  LEGISLATION 

IN  this  chapter  I  propose  to  say  something  about  certain 
special  forms  of  legislation. 

On  consolidation  bills  I  have  touched  already.  You  will 
remember  that  the  object  of  a  consolidation  bill  is  to  com- 
bine in  a  single  measure  enactments  relating  to  the  same 
subject-matter,  but  scattered  over  different  Acts,  and  thus 
to  improve  the  form,  without  altering  the  substance,  of  the 
law. 

For  this  purpose,  as  I  have  remarked,  mere  paste  and 
scissors  consolidation  seldom  suffices.  Its  result  would  be, 
in  many  cases,  alteration  of  meaning.  It  also  tends  to  pro- 
lixity and  ambiguity. 

Literal  reproduction  often  means  substantial  alteration. 
An  Act  of  Parliament  speaks  with  reference  to  the  time  at 
which  and  the  circumstances  under  which  it  is  passed.  The 
language  of  three  hundred  or  even  of  fifty  years  ago  would 
often  have  an  entirely  different  meaning  if  reproduced  in  an 
Act  of  the  present  day.  The  mere  collocation  of  enactments 
of  different  dates  alters  the  sense. 

The  enactments  to  be  reproduced  are  often  unduly  prolix, 
and,  even  where  that  is  not  so,  the  net  result  of  a  long  series 
of  amendments  of  the  law  can  frequently  be  summed  up 
very  briefly. 

The  language  of  different  Acts,  even  when  they  relate  to 
the  same  subject-matter,  is  often  not  uniform.  The  same 

123 


124  THE  MECHANICS  OF  LAW  MAKING 

expressions  are  differently  defined,  and  are  given  different 
meanings  by  the  context.  Hence  alteration  of  language  is 
necessary  for  the  sake  of  clearness  and  consistency. 

For  all  these  reasons  the  work  of  consolidation  can  seldom 
be  effected  mechanically.  The  law  has  to  be  rewritten  in 
such  a  form  as  to  preserve  its  substance  whilst  altering  its 
form.  But  care  should  be  taken  to  preserve  the  material 
language  unless  there  is  any  special  reason  for  altering  it, 
and  specially  to  preserve,  as  far  as  possible,  expressions  on 
which  a  judicial  construction  has  been  placed  or  which 
have  acquired  a  particular  signification  in  practice. 

It  is,  however,  rarely  possible  to  reproduce  existing 
statute  law  without  some  slight  alteration  of  substance. 
Ambiguities  and  inconsistencies  have  to  be  removed ;  modern 
machinery  has  to  be  substituted  for  machinery  which  has 
become  obsolete  or  inconvenient.  Alterations  of  this  kind 
may  properly  be  described  as  necessarily  incidental  to  the 
process  of  consolidation ;  and,  if  their  nature  is  fully  and  fairly 
explained,  objection  will  probably  not  be  raised  on  the 
ground  that  the  measure  goes  beyond  the  proper  scope  of 
consolidation.  Every  consolidation  bill  should,  therefore, 
be  accompanied  by  a  memorandum  and  notes  on  clauses 
showing  what  alterations  of  this  kind  are  made  by  the  bill. 

In  order  to  make  sure  that  the  existing  enactments  have 
been  fully  reproduced,  and  that  nothing  has  been  over- 
looked, a  reference  to  each  section  reproduced  should  be 
given  on  the  margin  of  each  reproducing  clause,  and  there 
should  also  be  a  separate  table  of  the  enactments  repealed 
and  superseded,  showing  where  each  repealed  section  is 
reproduced,  or,  if  it  has  not  been  reproduced,  on  what  ground 
it  has  been  omitted.  There  will  thus  be  a  double  check  on 
the  accuracy  of  the  consolidation.  The  marginal  reference 


FORMS  OF  LEGISLATION  125 

will  show  whence  the  new  law  is  derived ;  the  table  of  com- 
parison will  show  how  the  existing  law  is  accounted  for. 

There  is  often  difficulty  in  determining  the  boundary 
lines  of  a  consolidation  bill,  in  saying  what  enactments  it 
should  or  should  not  reproduce.  Each  bill  of  this  kind  ought 
to  be  regarded  as  a  chapter  in  an  ideal  code,  and  considered 
in  its  relations  to  kindred  branches  of  the  law.  It  should 
be  considered,  before  a  provision  is  inserted,  whether  it 
might  not  find  a  more  appropriate  place  in  another  chapter  ; 
and  before  a  provision  is  omitted,  where  else  it  could  be 
better  placed  if  kindred  branches  of  the  law  were  consoli- 
dated. But  theoretical  considerations  of  this  kind  must 
often  give  way  to  considerations  of  policy.  It  is  frequently 
better  to  have  incomplete  consolidation  than  no  consolida- 
tion at  all,  and  to  avoid  enactments  which  it  would  be 
dangerous  under  existing  circumstances  to  touch. 

Legislation  by  reference  is  a  favourite  subject  of  invective 
with  critics  of  parliamentary  procedure.  But  the  phrase  has 
more  than  one  meaning.  In  its  widest  sense  it  includes  any 
reference  in  one  statute  to  the  contents  of  another.  In  a 
narrower  sense  it  means  the  application,  not  by  express  re- 
enactment,  but  by  reference,  of  the  provisions  of  one  statute 
to  the  purposes  of  another. 

All  legislation  is  obviously  referential  in  the  widest  sense. 
No  statute  is  completely  intelligible  as  an  isolated  enact- 
ment. Every  statute  is  a  chapter,  or  a  fragment  of  a  chap- 
ter, of  a  body  of  law.  It  involves  references,  express  or 
implied,  to  the  rules  of  the  common  law,  and  to  the  provi- 
sions of  other  statutes  bearing  on  the  same  subject.  If  the 
leading  rules  of  the  common  law  were  codified,  that  is  to 
say,  expressed  in  a  concise,  orderly,  and  authoritative  form ; 
if  the  provisions  of  the  statute  law  were  consolidated,  that 


126  THE  MECHANICS  OF  LAW  MAKING 

is  to  say,  if  the  statutory  provisions  on  each  subject  were 
collected  and  arranged  in  a  single  Act,  —  the  outside  know- 
ledge required  for  the  interpretation  and  application  of  par- 
ticular Acts  would  be  more  easily  acquired.  But  under 
existing  conditions  the  complete  effect  of  a  short  and  ap- 
parently simple  enactment  often  cannot  be  grasped  without 
a  careful  search  through  textbooks  and  the  statute  book. 
The  conservative  character  of  English  legislation  increases 
the  difficulty  of  this  task.  The  English  legal  and  adminis- 
trative system  is  like  an  ancient  and  venerable  building, 
which  has  been  often  repaired,  altered,  and  enlarged,  but  has 
never  been  pulled  down  and  rebuilt.  There  has  been  no 
revolutionary  break  with  the  past.  When  a  new  departure 
is  resolved  upon,  it  is  usually  made  in  a  cautious  and  experi- 
mental fashion.  The  adoption  of  the  experiment  is  made 
permissive  in  the  first  instance,  or  its  application  is  confined 
to  a  limited  area,  to  a  particular  trade  or  occupation,  or  to  a 
restricted  set  of  circumstances.  The  new  rules  are  patched 
and  altered  as  defects  appear,  the  area  of  experiment  is 
gradually  enlarged,  and  it  is  not  until  the  new  law  has  been 
tested  by  adequate  experience  that  its  application  is  made 
general  or  compulsory.  Until  the  new  system  has  acquired 
a  comparatively  final  form,  until  the  difficulties  raised  by  its 
introduction  have  subsided  or  been  overcome,  until  it  has 
been  generally  accepted  as  part  of  the  settled  law  of  the 
country,  there  is  a  natural  indisposition  to  stir  burning 
questions  by  proposing  to  repeal  the  existing  enactments 
and  fuse  them  into  a  new  and  comprehensive  Act.  And  it 
must  be  admitted  that  the  task  of  consolidation  is  often 
postponed  after  these  grounds  for  delay  have  ceased  to 
operate.  These  circumstances,  coupled  with  an  indifference 
to  style  and  finish,  characteristic  also  of  English  art  and 


FORMS  OF  LEGISLATION  127 

English  literature,  are  sufficient  to  explain  the  disorderly 
condition  of  the  English  statute  book,  which  is  so  often 
made  a  subject  of  reproach  by  legislators  and  judges  as  well 
as  by  scientific  writers  on  the  law.  But  whilst  the  justice 
of  their  criticisms  may  be  admitted,  it  must  be  borne  in 
mind  that  the  national  characteristics  which  are  responsible 
for  these  defects  have  much  to  do  with  the  vitality  and  the 
efficacy  of  English  institutions. 

It  follows  that  the  English  legislator  rarely,  if  ever,  finds 
himself  in  a  position  to  inscribe  a  brand-new  law  on  a  blank 
sheet  of  paper.  The  utmost  that  he  can  usually  aim  at  is 
to  remove  some  blemish  from,  or  to  alter  or  add  to  some 
provisions  of,  an  existing  law  or  institution ;  in  other  words, 
to  pass  an  amending  Act.  And  the  best  mode  of  framing 
an  amending  Act,  so  as  to  be  intelligible  both  to  those  who 
have  to  pass  it  and  to  those  who  have  to  administer  it,  is 
often  a  problem  of  considerable  difficulty. 

From  the  point  of  view  of  administration  the  most  con- 
venient plan  is  to  repeal  the  old  law,  and  re-enact  it  with 
the  necessary  modifications.  But  the  law  to  be  amended 
is  often  contained  in  more  than  one  Act,  and  English  experi- 
ence tends  to  show  that  attempts  to  combine  consolidation 
with  substantial  amendment  are  rarely  successful.  Even 
where  there  is  only  one  Act  that  need  be  amended,  a  proposal 
to  repeal  the  whole  Act  for  the  purpose  of  making  a  single 
amendment,  or  two  or  three  amendments  of  minor  impor- 
tance, is  open  to  many  objections.  It  gives  the  proposed 
legislation  an  appearance  of  being  more  important  and  more 
extensive  in  its  scope  than  it  really  is,  and  the  prudent  legis- 
lator will  usually  prefer  to  minimize  rather  than  magnify 
his  proposals.  It  obscures,  and  distracts  the  attention  of 
the  legislature  from,  the  immediate  point  or  points  in  issue. 


128  THE  MECHANICS  OF  LAW  MAKING 

It  throws  the  whole  law  into  the  crucible,  exposes  to  amend- 
ment, not  merely  the  particular  provisions  which  the  intro- 
ducer of  the  bill  desires  to  alter,  but  all  other  provisions  of 
the  law  which  appear  to  be  in  any  way  open  to  criticism, 
and  consequently  multiplies  the  points  of  attack  and  the 
obstacles  to  progress  in  a  committee  of  the  House.  The 
proposal  to  repeal  and  re-enact,  not  the  whole  of  an  Act, 
but  merely  a  particular  section  of  an  Act,  is  often  open  to 
similar  objections  from  a  parliamentary  point  of  view.  For 
the  section  may  embody  a  principle,  or  may  contain  pro- 
visions, which  the  introducer  of  the  bill  does  not  desire  to 
question,  but  which  cannot  escape  criticism  if  the  whole 
section  is  proposed  for  repeal. 

In  some  cases,  also,  the  law  embodied  in  the  new  enact- 
ment is  intended  to  apply  only  to  events  and  transactions 
happening  after  a  particular  date,  leaving  events  and  trans- 
actions happening  before  that  date  to  be  governed  by  the 
old  law,  and  in  such  cases,  if  the  old  law  is  repealed,  it  is 
often  not  easy  to  express  the  precise  operation  of  the  law 
with  respect  to  occurrences  at  different  dates. 

For  all  or  some  of  these  reasons  the  promoter  of  an  amend- 
ing measure  usually  has  to  content  himself  with  altering  the 
form  or  substance  of  existing  sections,  or  adding  sections  to 
an  existing  Act. 

If,  for  any  of  these  reasons,  the  method  of  repeal  or  re- 
enactment  is  not  adopted,  the  next  most  convenient  course, 
from  the  point  of  view  of  administration,  is  to  express  the 
amendments  in  a  technical  form,  like  notices  of  amend- 
ments to  bills  in  Parliament,  or  like  errata  or  addenda  in 
books ;  that  is  to  say,  in  the  form  of  directions  to  strike  out 
particular  words  or  sentences  from  an  enactment,  and  to 
add  others.  This  is  the  form  frequently  adopted  by  the 


FORMS  OF  LEGISLATION  129 

Indian  legislatures.  It  has  considerable  advantages.  It 
enables  a  clerk  to  note  up,  almost  mechanically,  the  altera- 
tions in  the  statute  law,  by  simply  striking  out  or  writing 
in  the  necessary  words.  Thanks  to  this  method  of  amend- 
ment, the  Legislative  Department  of  the  government  of 
India  is  able  to  issue  periodically  revised  editions  of  the  most 
important  Indian  Acts,  which  embody  the  amendments  up 
to  date,  and  thus,  for  many  purposes,  take  the  place  of 
repealing  and  consolidating  Acts.  The  substitution  is  not 
completely  satisfactory,  partly  because  it  is  always  neces- 
sary to  bear  in  mind  the  date  from  which  the  new  enact- 
ments incorporated  in  the  old  law  began  to  operate,  and 
partly  because,  for  this  and  other  reasons,  if  a  case  on  the 
amended  Act  comes  into  court,  the  judge  or  magistrate  often 
finds  it  necessary  to  inspect  the  original  Acts  instead  of  rely- 
ing on  the  reprint.  But  for  purposes  of  practical  adminis- 
tration such  reprints  are  of  great  convenience. 

On  the  other  hand,  from  the  point  of  view  of  English 
parliamentary  procedure,  an  amending  bill  drawn  in  the 
technical  form  adopted  by  the  Indian  legislature  is  open  to 
serious  objections.  In  the  first  place,  it  is  absolutely  unin- 
telligible without  the  text  of  the  enactments  which  it  is 
proposed  to  emend,  and  even  if  these  objections  can  be  re- 
moved by  means  of  an  explanatory  memorandum,  a  bill 
thus  drawn  is,  as  any  one  who  has  watched  attempts  to 
frame  parliamentary  amendments  will  readily  understand, 
extremely  difficult  to  amend,  and  thus  presents  unreasonable 
obstacles  to  legitimate  discussion  in  committee.  For  these 
reasons  this  technical  method  of  amendment  is  hardly  ever 
adopted  in  England  except  in  the  case  of  non-contentious 
measures. 

In  these  circumstances,  the  ordinary  mode  of  amending 


130  THE  MECHANICS  OF  LAW  MAKING 

an  Act  is  to  state  in  the  amending  bill  the  effect  of  the  amend- 
ment proposed  to  be  made.  This  is  the  commonest  mode, 
and  for  English  parliamentary  purposes  is  the  most  con- 
venient, because  under  it  every  member  of  Parliament  who 
knows  anything  of  the  subject  learns  at  once  the  nature  of 
the  amendment  proposed.  And  in  some  cases,  where  the 
amendment  virtually  overrides  a  large  portion  of  the  existing 
enactment,  it  is  practically  the  only  possible  method. 

There  are  cases  in  which  it  may  be  possible  to  combine 
what  may  be  called  the  popular  and  the  technical  mode  of 
amendment,  by  stating  at  the  beginning  of  a  clause  the 
substance  of  the  amendment  proposed  to  be  made,  and  add- 
ing, in  a  separate  subsection  or  otherwise,  technical  amend- 
ments, which  make  the  requisite  alterations  in  the  language 
of  the  enactment  amended. 

You  will  have  seen  from  what  I  have  said  that  the  great 
bulk  of  legislation  in  England,  and  I  should  think  probably 
in  the  United  States  also,  is  amending  legislation,  and  that 
all  amending  legislation  is  referential  in  the  sense  that  it  is 
unintelligible  without  reference  to  other  enactments. 

But  by  referential  legislation  in  the  narrower  sense  is 
meant  legislation  of  which  the  object  is,  not  to  amend  an 
existing  enactment,  but  to  apply  its  provisions  to  a  new  set 
of  circumstances,  and  that  is  the  form  of  legislation  which 
in  England  has  been  most  criticised  and  abused. 

There  is  an  obvious  case  in  which  this  mode  of  legislation 
is  clearly  legitimate  and  appropriate.  The  case  is  that  of 
Acts  which  have  been  drawn  for  the  express  purpose  of 
being  applied  to  other  enactments.  In  England  the  most 
conspicuous  case  of  such  Acts  is  supplied  by  the  Clauses 
Consolidation  Acts  of  1845.  The  development  of  railway 
and  joint-stock  enterprises  in  the  third  and  fourth  decades 


FORMS  OF  LEGISLATION  131 

of  the  nineteenth  century  gave  rise  to  a  vast  number  of 
private  Acts,  each  containing  provisions  closely  resembling, 
and  often  copied  from,  each  other.  With  the  view  of  reducing 
the  length  of  these  Acts  and  of  securing  greater  uniformity 
in  their  provisions,  Mr.  Booth,  when  counsel  to  the  Speaker 
of  the  House  of  Commons,  drew  a  set  of  Acts  "  for  the  purpose 
of  consolidating  in  one  Act  certain  provisions  usually  con- 
tained in"  the  special  Acts  relating  to  the  formation  of  com- 
panies, the  taking  of  land,  and  the  construction  of  railways. 
These  Acts  have  no  independent  legislative  force  of  their 
own,  but  are  statutory  'common  forms/  required,  either  by 
the  terms  of  the  Act  itself,  or  by  the  standing  orders  of 
Parliament,  to  be  "  incorporated  "  hi  future  Acts.  They  have 
been  of  great  use  in  securing  uniformity  in  private  bill  legis- 
lation, and  in  saving  the  time  of  Parliament.  But  it  would 
probably  have  been  better  if  they  had  been  enacted  in  the 
form  of  substantive  law,  with  provisions  for  allowing  their 
modification  by  special  legislation  in  proper  cases. 

Incorporation  of  the  Clauses  Acts  is  a  method  of  legis- 
lation directly  contemplated  when  those  Acts  were  passed. 
But  a  further  step  is  taken  when  an  enactment  is  applied  to 
circumstances  different  from  those  contemplated  when  it 
was  passed.  This  method  of  legislation,  of  which  I  gave 
an  illustration  in  an  earlier  chapter,1  sometimes  presents 
advantages  from  an  administrative  point  of  view,  but  is 
often  forced  upon  the  draftsman  by  the  pressure  of  political 
and  parliamentary  exigencies,  and  has,  no  doubt,  in  some 
cases  been  carried  a  great  deal  too  far. 

Perhaps  the  best  defence  of  it  is  that  probably  every  one 
who  was  concerned  with  the  passing  of  the  Acts  in  which 
it  was  employed  would  hold  that  no  other  method  could  have 

1  See  above,  p.  20. 


132  THE  MECHANICS  OF  LAW  MAKING 

been  adopted  with  any  prospect  of  success.  The  method 
rarely,  if  ever,  saves  the  draftsman  any  trouble,  for  the  work 
of  framing  modifications  of  the  enactments  applied  requires 
extreme  care,  and  is  often  a  matter  of  great  difficulty.  Un- 
der the  pressure  of  superior  authority  the  draftsman  labours 
to  be  brief.  It  is  no  marvel  that  he  is  sometimes  obscure. 

The  conclusion  seems  to  be  that,  in  English  legislation  at 
all  events,  the  method  of  legislation  by  reference  is  in  some 
cases  unavoidable,  but  that  where  it  has  been  adopted,  the 
proper  course  is  to  throw  the  law,  as  soon  as  practicable, 
into  a  simpler  and  more  intelligible  form  by  passing  a  measure 
of  consolidation. 

There  are  two  forms  of  English  legislation  on  which  I  have 
touched,  very  lightly,  in  previous  chapters,  but  on  which  it  is 
now  necessary  to  say  something  more.  These  are,  first, 
private  bills  and  provisional  order  bills,  and,  secondly,  that 
form  of  subordinate  or  delegated  legislation  which  takes  the 
form  of  what  we  call  statutory  rules  and  orders. 

And  first  of  private  bill  legislation :  I  believe  that  you 
do  not  make  the  same  distinction,  at  all  events  not  the  same 
kind  of  distinction,  that  we  make  between  public  bills  and 
private  bills. 

The  object  of  a  public  bill,  according  to  our  system  of 
nomenclature,  is  to  alter  the  general  law. 

The  subjects  with  which  English  private  bills  ordinarily 
deal  appear  from  the  headings  given  in  the  first  of  the  stand- 
ing orders  of  our  House  of  Commons  relating  to  private  busi- 
ness. Those  headings  are  as  follows :  — 

1st  Class : 

Burial  Ground,  Making,  Maintaining  or  Altering. 
Charters  and  Corporations,  Enlarging  or  Altering  Powers  of. 
Church  or  Chapel,  Building,  Enlarging,  Repairing  or  Maintaining. 


FORMS  OF  LEGISLATION  133 

City  or  Town,  Paving,  Lighting,  Watching,  Cleansing  or  Im- 
proving. 

Company,  Incorporating,  Regulating,  or  giving  Powers  to. 

County  Rate. 

County  or  Shire  Hall,  Court  House. 

Crown,  Church,  or  Corporation  Property,  or  Property  held  in 
Trust  for  Public  or  Charitable  Purposes. 

Electricity  Supply. 

Ferry,  where  no  work  is  to  be  executed. 

Fishery,  Making,  Maintaining  or  Improving. 

Gaol  or  House  of  Correction. 

Gas  Work. 

Improvement  Charge,   unless  proposed  in  connection  with  a 
Second  Class  Work  to  be  authorised  by  the  Bill. 

Land,  Inclosing,  Draining  or  Improving. 

Letters  Patent. 

Local  Court,  Constituting. 

Market   or    Market    Place,    Erecting,    Improving,    Repairing, 
Maintaining  or  Regulating. 

Pilotage. 

Police. 

Poor,  Maintaining  or  Employing. 

Poor  Rate. 

Powers  to  sue  and  be  sued,  Conferring. 

Stipendiary  Magistrate,  or  any  Public  Officer,  Payment  of. 

Trolley  vehicle  system. 

And 

Continuing  or  amending  an  Act  passed  for  any  of  the  purposes  in- 
cluded in  this  or  the  Second  Class,  where  no  further  work  than 
such  as  was  authorised  by  a  former  Act  is  proposed  to  be  made. 
2d  Class : 

Making,   Maintaining,   Varying,   Extending  or  Enlarging  any 
Aqueduct. 
Archway. 
Bridge. 
Canal. 
Cut. 
Dock. 


134  THE  MECHANICS  OF  LAW  MAKING 

Drainage  —  where  it  is  not  provided  in  the  Bill  that  the  Cut 
shall  not  be  more  than  Eleven  feet  wide  at  the  bottom. 

Embankment  for  reclaiming  Land  from  the  Sea  or  any  Tidal 
River. 

Ferry,  where  any  work  is  to  be  executed. 

Harbour. 

Motor  Road. 

Navigation. 

Pier. 

Port. 

Public  Carriage  Road. 

Railway. 

Reservoir. 

Sewer. 

Street. 

Subway. 

Tramway. 

Tramroad. 

Tunnel. 

Waterwork. 

You  will  see  that  this  class  of  bills  deals  mainly  with  the 
grant  and  regulation  of  what  you  would  call  franchises.  For 
instance,  a  railway  bill  is  a  typical  private  bill.  And  here 
I  ought  to  clear  away  some  confusions  which  are  apt  to  arise 
from  our  nomenclature  and  classification  of  bills  and  Acts. 

In  the  first  place,  a  private  bill  is  quite  a  different  thing 
from  a  private  member's  bill.  What  we  mean,  when  we 
speak  of  a  private  member's  bill,  is  merely  a  bill  introduced 
by  a  private  member  as  distinguished  from  a  member  of 
the  government.  It  may  be  either  a  public  or  a  private 
bill. 

In  the  next  place,  the  great  bulk  of  private  bills,  when  they 
become  law,  are  classified  in  the  statute  book  as  local  and 
personal  acts,  the  term  " private  Act"  being  confined  to  a 
very  small  class  dealing  solely  with  the  rights  of  individuals, 


FORMS  OF  LEGISLATION  135 

such  as  estate  Acts  and  the  like.  Therefore  the  title  "  pri- 
vate bill "  covers  a  much  wider  field  than  the  title  "  private 
Act." 

As  to  the  form  of  private  bills,  it  is  left  very  much  to  the 
promoters  of  the  bills,  and  to  those  with  whom  they  may 
have  to  make  terms  of  compromise.  But  a  general  super- 
vision over  .them  is  exercised  by  legal  officers  attached  to  the 
two  Houses  of  Parliament,  the  counsel  to  the  Lord  Chairman 
of  Committees  in  the  House  of  Lords,  and  the  counsel  to  the 
Speaker  of  the  House  of  Commons,  and  these  gentlemen  have 
prepared  model  forms  for  the  guidance  of  promoters  of  such 
bills. 

Between  the  procedure  for  passing  public  bills  and  the 
procedure  for  passing  private  bills  there  are  material 
differences.  A  private  bill  is  initiated  by  petition,  and  fees, 
pretty  heavy  fees,  are  paid  at  the  several  stages  of  its  passage 
through  Parliament.  It  is  regarded  as  a  privilegium,  for 
which  a  price  should  be  paid  to  the  State.  Then  our  stand-1 
ing  orders  require  notices  to  be  given  to  persons  whose 
private  interests  may  be  affected,  in  order  that  they  may  have 
an  opportunity  of  asserting  and  protecting  their  rights  when 
the  bill  comes  on  for  discussion,  and  the  two  Houses  appoint 
officers,  called  examiners  of  petitions  for  private  bills,  for 
the  purpose  of  seeing  that  these  standing  orders  are  observed. 
The  first  reading  of  a  private  bill  is  purely  formal.  The 
second  reading  takes  place  in  the  House  at  the  time  reserved 
for  private  business.  The  second  reading  is  rarely  debated, 
except  when  the  bill  raises,  or  is  alleged  to  raise,  some  question 
of  general  principle.  After  second  reading  the  bill  goes 
before  a  small  committee  of  four  members,  or,  hi  the  case  of 
unopposed  bills,  five  members.  This  committee  deals  with 
the  bill  judicially,  hears  counsel  and  witnesses,  considers 


136  THE  MECHANICS  OF  LAW  MAKING 

and  determines  whether  the  preamble  is  proved,  and  settles 
the  form  which  the  clauses  are  to  assume. 

I  should  add,  and  this  is  important,  that  when  a  private 
bill,  promoted  by  a  municipal  or  other  local  authority,  pro- 
poses to  create  powers  relating  to  police,  sanitary,  or  other 
local  regulations  in  conflict  with,  deviation  from,  or  excess 
of,  the  general  law,  it  goes  to  a  special  committee  which  is 
charged  with  the  difficult  duty  of  considering  how  far  and  in 
what  cases  rules  and  principles  of  general  law  ought  to  be 
superseded  or  modified  by  local  legislation.  Whether  a 
private  bill  goes  before  the  local  legislation  committee  or  not, 
it  is  reported  in  due  course  to  the  House  by  the  committee 
which  has  considered  it,  and  in  the  House,  at  the  time  al- 
lotted for  private  business,  it  goes  through  the  final  stages 
called  consideration  of  report  and  third  reading. 

You  may  gather  from  what  I  have  said  that  the  procedure 
for  passing  a  private  bill  is  elaborate,  and,  I  may  add,  ex- 
pensive. The  great  time  in  England  for  private  bill  legis- 
lation was  during  the  railway  boom  of  the  forties  and  fifties 
in  the  last  century.  Since  that  boom,  though  the  local  and 
personal  Acts  of  each  session  still  fill  many  volumes,  there 
has  been  a  great  diminution  in  the  bulk  and  volume  of  pri- 
vate bill  legislation.  That  diminution  may,  I  think,  be 
traced  mainly  to  three  causes.  In  the  first  place,  all  our 
great  railway  lines  have  been  built,  and  the  numerous  com- 
panies by  which  they  were  constructed  have  been  absorbed 
by,  or  amalgamated  with,  a  comparatively  small  number  of 
big  companies.  In  the  next  place  a  great  many  matters 
which  used  to  be  dealt  with  by  special  legislation  are  now 
regulated  by,  or  under  powers  conferred  by,  general  legis- 
lation. For  instance,  the  vast  majority  of  companies  are 
now  incorporated,  not  by  special  Act,  but  by  a  license  from 


FORMS  OF  LEGISLATION  137 

the  Board  of  Trade  under  the  general  Companies  Act.  And 
many  of  the  provisions  which  formerly  used  to  appear  in 
local  Acts  are  now  to  be  found  in  the  general  Public  Health 
Acts.  These  are  two  out  of  a  very  large  number  of  cases  in 
which  local,  and,  as  it  may  be  called,  experimental  legisla- 
tion has,  in  the  natural  course  of  things,  been  superseded 
by  general  legislation. 

Thirdly  and  lastly,  the  expensive  process  of  private  bill 
legislation  has,  in  a  great  many  cases,  been  superseded  by 
provisional  order  legislation.  The  object  of  a  provisional 
order  is  usually  to  provide  a  means  of  obtaining  Parliamen- 
tary sanction  for  the  execution  of  works,  or  the  carrying  out 
of  administrative  arrangements,  which  are  incidental  to  the 
administration  of  a  public  general  Act,  but  for  which  the 
authority  of  a  special  Act,  that  is  to  say,  of  a  private  bill 
destined  to  become  a  local  or  personal  Act,  would  ordinarily 
be  required.  The  machinery  of  provisional  orders  was,  I 
believe,  first  applied  by  one  of  our  Public  Health  Acts,  for 
the  purpose  of  giving  powers  to  obtain  land  required  by 
sanitary  authorities,  and  was  worked  by  the  Local  Govern- 
ment Board,  which  is  the  central  authority  under  these 
Acts.  But  the  system  has  since  been  extended  to  many  other 
purposes,  and  is  worked  by  several  other  central  depart- 
ments besides  the  Local  Government  Board.  The  cases 
hi  which  it  is  most  frequently  employed  are  those  in  which 
the  carrying  into  effect  of  a  public  general  Act  involves 
interference  with  private  or  public  rights.  The  way  in 
which  it  is  ordinarily  worked  is  this.  The  local  authority 
or  other  body  concerned  makes  an  application  to  the  proper 
central  authority,  such  as  the  Local  Government  Board,  or 
the  Board  of  Trade,  or  the  Board  of  Education,  for  an  order 
embodying  the  powers  and  provisions  needed.  The  central 


138  THE  MECHANICS  OF  LAW  MAKING 

authority  makes  a  draft  order,  sends  out  notices,  and  holds 
a  local  inquiry  at  which  objections  are  heard  and  considered. 
When  this  order  is  finally  .  approved  by  the  department 
which  is  the  central  authority,  that  department  schedules  it, 
either  alone  or  with  other  orders,  to  a  confirming  bill,  which 
is  introduced  into  the  House  by  the  minister  representing 
the  department.  The  confirming  bill  is  technically  a  public 
bill,  but  is  introduced  and  passes  through  its  subsequent 
stages  in  the  House  at  the  time  allotted  for  private  business. 
If,  while  the  bill  is  pending  in  either  House,  a  petition  is 
presented  against  any  order  proposed  to  be  confirmed  by  it, 
the  bill  is  treated  as  if  it  were  an  opposed  private  bill,  and 
goes  before  a  small  committee.  But  in  other  cases  the  pre- 
liminary departmental  inquiry  takes  the  place  of  the  costly 
inquiry  before  a  parliamentary  committee.  And  in  any  case, 
the  promoters  are  absolved  from  payment  of  the  fees  re- 
quired for  the  passage  of  local  and  personal  Acts.  This  pro- 
cedure saves  a  great  deal  of  expense  and  a  great  deal  of  par- 
liamentary time,  and  has  been  very  largely  adopted  in  recent 
times.  Such  departments  as  the  Local  Government  Board 
and  the  Board  of  Trade  pass  through  Parliament  in  each 
session  a  great  many  Provisional  Order  Confirmation  Bills, 
often  with  several  orders  attached  to  them.  The  bills  con- 
firming these  orders,  when  they  become  Acts,  are  to  be  found, 
not  among  the  Public  General  Acts  of  the  session,  but  among 
the  Local  and  Personal  Acts,  with  which  they  have  most 
affinity.1 

The  provisional  order  system  which  I  have  described  re- 

1  Among  notable  extensions  of  the  provisional  order  method  of  legislation 
in  recent  times  are  a  Marriage  Act,  which  enables  technical  invalidities  in 
marriages  to  be  cured  by  provisional  orders  instead  of  by  special  Acts,  and  a 
Trade  Boards  Act,  under  which  the  operation  of  the  Act  can  be  extended  by 
provisional  order  to  trades  other  than  those  to  which  it  was  originally  applied. 


FORMS  OF  LEGISLATION  139 

lieves  the  work  of  the  legislature  by  placing  at  a  preliminary 
stage  the  task  of  hearing  and  considering  objections  to  pro- 
posed legislation  by  means  of  an  inquiry  held  under  the 
supervision,  not  of  the  legislature,  but  of  a  department  of 
the  executive  government.  It  authorises  that  department 
to  make  an  order  which  has  only  provisional  effect ;  that  is 
to  say,  which  does  not  operate  as  law,  until  it  has  been  ex- 
pressly confirmed  by  the  legislature,  and  reserves  to  the 
legislature  the  power  to  pass  an  Act  confirming  these  orders. 

The  system  of  statutory  rules  and  orders  goes  a  step  fur- 
ther in  the  direction  of  delegating  legislative  work  to  the 
executive  government,  by  empowering  the  executive  to  make 
rules  and  orders  which  do  not  require  express  confirmation 
by  Parliament,  although  they  are  in  some  cases  subject  to 
disallowance  by  that  body. 

These  rules  and  orders  represent  a  class  of  legislation 
which  is  of  great  and  growing  importance  in  England,  which, 
in  somewhat  different  form  and  in  pursuance  of  somewhat 
different  principles,  is  of  still  greater  importance  on  the 
continent  of  Europe,  but  to  which  there  is,  possibly,  no  precise 
parallel  in  the  United  States.  They  stand  on  the  debateable 
border  land  between  legislative  and  executive  action,  and  it 
may  be  that,  owing  to  the  limitations  on  the  powers  of  your 
legislatures,  and  to  the  way  in  which  you  draw  the  line 
between  legislative  and  executive  functions,  they  cannot  be 
used  in  the  same  way  or  to  the  same  extent  as  in  England. 
On  that  point  I  should  be  glad  to  have  further  information. 
But  their  existence  and  the  power  to  make  them  exercise  such 
a  material  influence  on  the  form  of  modern  English  legis- 
lation that  I  feel  bound  to  say  something  about  them.  In 
most  cases,  for  the  line  is  not  always  easy  to  draw,  they  would 
probably  be  described  as  laws,  general  laws,  not  particular 


140  THE  MECHANICS  OF  LAW  MAKING 

executive  orders.  They  derive  their  authority  from  the 
legislature.  But  the  legislature  does  not  make  them.  What 
it  does  is  to  delegate  the  power  to  make  them  to  some  other 
person  or  body,  usually  to  some  executive  authority.  That 
is  why  they  stand,  as  I  have  said,  on  the  borderland  between 
legislative  and  executive  action.1 

In  France  and  Germany,  and  on  the  continent  of  Europe 
generally,  much  greater  use  is  made  than  in  England  of  the 
power  of  the  executive  government  to  supplement  parlia- 
mentary legislation  by  means  of  rules  or  orders  having  the 
effect  of  law.  And  these  rules  or  orders  are  made,  sometimes 
under  powers  delegated  by  the  legislature,  but  sometimes 
also  under  powers  given  to  the  executive  by  the  constitution, 
or  supposed  to  be  inherent  in  the  Crown  or  other  represent- 
ative of  the  executive  authority. 

In  Germany  a  distinction  is  drawn  between  Gesetz  and 
Verordnung,  between  a  law  formally  enacted  by  the  legisla- 
ture and  a  general  command  lawfully  proceeding  from  the 
executive  authority.2 

In  France  there  is  power  to  supplement  laws  by  decrees. 
This  power,  which  is  very  extensively  exercised,  has  come 
down  from  the  old  regime,  and  was  never  more  fully  used 
than  by  the  first  Napoleon,  whose  views  about  the  powers 
and  functions  of  legislatures  differed  widely  from  those  held 
in  the  United  States.  You  may  probably  have  heard  of  the 
famous  French  constitution  of  the  Year  VIII,  which  ema- 
nated from  the  brain  of  Sie"y£s,  which  was  so  altered  by  Na- 
poleon Bonaparte  as  to  make  it  serve  his  own  purposes  and 
defeat  those  of  the  author,  and  under  which  Bonaparte 

1  The  procedure  in  English  Courts  of  Law  is  almost  entirely  regulated, 
not  by  the  provisions  of  statutes,  but  by  rules  of  court  framed  by  experts 
acting  under  statutory  authority. 

*  See  Jellinek,  Gesetz  und  Verordnung. 


FORMS  OF  LEGISLATION  141 

became  First  and  Cambacer£s  Second  Consul.  This  con- 
stitution was  expressed  in  very  general  terms,  and,  as  finally 
drafted,  left  many  points  to  be  worked  out  in  practice,  and 
perhaps,  as  I  may  observe  parenthetically,  was  none  the 
worse  for  that.  Under  this  constitution  the  Council  of 
State  was  charged  with  the  duty  of  framing  laws,  the  trib- 
unes with  the  duty  of  discussing  and  criticising  the  draft 
of  a  law,  the  legislature  with  the  duty  of  deciding  by  vote, 
but  without  debate,  whether  it  should  or  should  not  become 
a  law.  "But  what  is  a  law?"  Bonaparte  asked  Camba- 
ce*re"s,  in  the  early  days  of  the  constitution.  "What  must 
be  settled  by  law,  and  how  much  can  we,  the  Consuls,  do  by 
reglements  in  our  Council  of  State,  without  calling  in  the  aid 
of  the  legislature?"  Cambace*re*s'  answer  was  discreetly 
oracular :  "A  reglement  is  only  the  particular  application  of 
the  law.  Law  is  the  general  rule  made  by  those  who  have 
the  right  and  power  to  make  it."  Bonaparte  smiled  and 
did  not  press  his  question  further.  He  kept  this  sibylline 
utterance  and  pondered  it  in  his  heart,  and  in  the  later  days 
of  the  Empire  he  made  it  the  foundation  of,  and  justification 
for,  his  extensive  legislation  by  decrees.  If  the  extent  to 
which  decrees  can  be  made  is  left  to  the  discretion  of  the 
executive,  the  power  is  capable  of  indefinite  extension.  The 
spirit  of  the  constitution  of  the  Year  VIII  still  breathes  in 
the  French  constitutions  of  later  dates,  and  in  the  other 
European  constitutions  modelled  on  or  suggested  by  those 
of  France.  Under  all  these  constitutions  the  executive 
government  has,  and  freely  exercises,  an  inherent  power  of 
making  decrees,  reglements,  and  similar  orders  and  regula- 
tions which  supplement  the  action  of  the  legislature »  For 
instance,  if  you  take  up  such  a  volume  as  the  Annuaire  of 
French  legislation,  published  by  the  French  Society  of  Com- 


142  THE  MECHANICS  OF  LAW  MAKING 

parative  Legislation,  you  will  find  a  large  amount  of  space 
occupied  by  decrees  ranking  alongside  of  ordinary  laws. 

In  Italy  the  power  of  the  executive  officials  to  make  regu- 
lations is  even  more  extensively  used.  The  constitution 
declares  that  "the  King  makes  the  decrees  and  regulations 
necessary  for  the  execution  of  the  laws  without  suspending 
their  observance  or  dispensing  with  them."  But  the  inter- 
pretation put  upon  this  provision  is  so  broad  that  the  govern- 
ment is  practically  allowed  to  suspend  a  law  subject  to  re- 
sponsibility to  Parliament,  and  even  to  make  temporary  laws 
which  are  submitted  to  Parliament  later.  And  Parliament 
uses  very  freely  the  power  of  delegating  legislative  power 
to  the  ministers.  In  the  case  of  the  recent  Criminal  Code 
for  Italy,  the  final  text  was  never  submitted  to  the  Chambers 
at  all,  but,  after  the  subject  had  been  sufficiently  debated, 
the  government  was  authorised  to  make  a  complete  draft 
of  the  code,  and  then  to  enact  it  by  royal  decrees,  harmonis- 
ing it  with  itself  and  with  other  statutes,  and  taking  into 
account  the  views  expressed  by  the  Chambers.  The  same 
was  true  of  the  electoral  law  of  1882,  of  the  recent  laws  on 
local  government  and  on  the  Council  of  State,  and  of  many 
other  enactments.  Without  express  power  for  the  purpose, 
the  minister,  prefects,  syndics,  or  other  officials  are  in  the 
habit  of  making  decrees  on  subjects  of  minor  importance.1 

Now  in  England  the  power  of  the  Crown  to  make  laws 
without  the  consent  of  Parliament  has  long  since  disappeared, 
or,  to  be  strictly  accurate,  has  been  so  reduced  as  to  be  in- 
finitesimally  small.  So  wide  an  extension  of  the  delegation 
of  legislative  powers  as  is  practised  in  France  and  Italy  would 
not  be  tolerated  in  England. 

As  to  the  past,  I  must  not  be  tempted  to  stray  into  the 

1  See  Lowell,  Governments  and  Parties  in  Continental  Europe,  Vol.  I,  p.  165. 


FORMS  OF  LEGISLATION  143 

region  of  English  constitutional  history.  All  that  I  need  do 
is  to  remind  you  that  in  the  earlier  stages  of  parliamentary 
development  the  border  line  between  laws  made  by  the  King 
in  the  exercise  of  the  royal  prerogative,  between  charters, 
ordinances,  and  orders  in  Council,  on  the  one  hand,  and  Acts 
of  Parliament  on  the  other,  was  not  definitely  drawn,  but 
that  the  tendency,  especially  in  Lancastrian  times,  always 
was  to  narrow  the  range  within  which  legislative  or  quasi- 
legislative  action  could  be  exercised  by  the  Crown.  When 
the  Tudor  dynasty  came  to  the  throne,  the  legislative  as 
well  as  the  executive  powers  of  the  Crown  were  materially 
strengthened.  Henry  VIII  was  a  monarch  who  entertained 
views  about  the  functions  of  the  legislature  not  unlike  those 
of  the  first  Napoleon.  He  held  that  Parliament  ought  not 
to  be  a  master,  but  could  be  made  a  very  useful  servant. 
And  he  discovered  —  this  was  his  great  feat  in  the  craft  of 
statesmanship  —  he  discovered  how  to  use  it.  He  treated 
Parliament  not  as  an  enemy  or  as  a  rival,  but  as  an  instru- 
ment. He  found  that  it  was  a  very  useful  instrument  if  it 
could  be  persuaded  to  play  the  right  tune,  and  he  took  good 
care  always  to  call  the  tune.  He  accepted  his  predecessor 
Henry  VIFs  principles  that  the  King  should  rule  through 
Parliament,  but  worked  that  principle  in  an  entirely  different 
way.  He  made  Parliament  the  engine  of  his  will.  He 
persuaded  or  frightened  it  into  doing  anything  that  he  pleased. 
Under  his  guidance  Parliament  defied  and  crushed  all  other 
powers,  spiritual  and  temporal,  and  did  things  which  no  King 
or  Parliament  had  ever  attempted  to  do,  things  unheard  of 
and  terrible.  And,  not  content  with  this,  he  took  a  step 
further,  and  in  the  year  1539,  when  he  had  been  30  years  on 
the  throne,  he  persuaded  Parliament  to  pass  the  Statute  of 
Proclamations  which  gave  the  King  power  to  legislate  by 


144  THE  MECHANICS  OF  LAW  MAKING 

proclamation.  If  this  innovation  could  have  been  main- 
tained, it  would  have  revolutionised  the  character  of  English 
legislation,  and  would  probably  have  introduced  the  system 
of  legislation  by  orders  and  decrees,  which  now  prevails  on 
the  continent  of  Europe.  But  the  Statute  of  Proclamations 
was  repealed  in  the  next  reign  and  was  never  revived,  and 
in  1610,  in  the  reign  of  James  I,  a  protest  of  the  judges  ''es- 
tablished (I  am  quoting  from  Professor  Dicey)  the  modern 
English  doctrine  that  royal  proclamations  have  in  no  sense 
the  force  of  law;  they  serve  to  call  the  attention  of  the 
public  to  the  law,  but  they  cannot  of  themselves  impose  upon 
any  man  any  legal  obligation  or  duty  not  imposed  by  Act  of 
Parliament."  *  So  it  was  gradually  recognised  that  a  law 
made  by  the  authority  of  Parliament  could  not  be  altered 
except  by  the  same  authority.  And,  as  the  number  of  Acts 
of  Parliament  and  of  the  subjects  with  which  they  dealt  in- 
creased, the  legislative  sphere  of  the  royal  prerogative  was 
proportionately  diminished,  and  has  now  been  reduced  within 
very  narrow  dimensions. 

Thus  the  inherent  or  residuary  power  of  the  Crown  or  of 
the  executive  government  to  make  decrees,  rules,  orders,  or 
regulations  having  the  force  of  law,  a  power  which  is  so  largely 
exercised  on  the  continent  of  Europe,  has  disappeared  in 
England. 

In  recent  years,  however,  what  may  be  called  the  legis- 
lative powers  of  the  executive  have  been  revived  and  ex- 
tended. A  large  and  increasing  number  of  modern  Acts  of 
Parliament  contain  provisions  giving  power  to  regulate 
specified  matters  by  orders  in  Council,  that  is  to  say,  by 
orders  made  by  the  King  in  Council  at  the  instance  of  some 
department  of  the  executive  government,  or  by  what  are 

lLaw  of  the  Constitution  (7th  ed.),  P-  48. 


FORMS  OF  LEGISLATION  145 

now  called  collectively  statutory  rules  and  orders,  that  is 
to  say,  rules  and  orders  made  by  some  department  of  the 
government  under  powers  specifically  delegated  to  it  by 
Parliament.  The  adoption  of  these  methods  has  been 
rendered  necessary  by  the  great  quantity  of  administrative 
legislation  which  has  been  the  characteristic  feature  of 
parliamentary  history  since  the  Reform  Act  of  1832.  It  is 
the  increasing  complexity  of  modern  administration  and  the 
increasing  difficulty  of  passing  complicated  measures  through 
the  ordeal  of  parliamentary  discussion,  that  have  led  to  the 
increase  in  the  practice  of  delegating  legislative  power  to 
executive  authorities.  This  practice  has  materially  affected 
the  form  of  modern  English  statutes.  The  tendency  of 
modern  parliamentary  legislation  in  England  has  been  in 
the  direction  of  placing  in  the  body  of  an  Act  merely  a  few 
broad  general  rules  or  statements  of  principles  and  relegating 
details  either  to  the  schedules  or  statutory  rules.  I  say  that 
this  is  the  general  tendency,  but  it  is  a  tendency  which  is 
regarded  in  England  with  much  jealousy,  legitimate  jealousy, 
and  the  operation  of  which  requires  to  be  carefully  watched. 

As  to  schedules,  a  schedule  is  merely  part  of  an  Act,  and, 
unless  it  is  made  alterable  by  executive  authority,  the  ques- 
tion whether  a  provision  or  set  of  provisions  should  appear 
in  the  body  of  an  Act  or  in  a  schedule,  is  a  question  of  form 
and  parliamentary  practice. 

But  the  question  whether  a  particular  rule  ought  to  be 
embodied  in  an  Act  or  left  to  be  made  by  a  subordinate 
authority,  the  question  whether,  to  what  extent,  and  under 
what  safeguards  and  restrictions,  the  exercise  of  legislative 
power  should  be  delegated,  is  a  question  of  principle. 

I  have  spoken  to  you  about  the  extent  to  which  the  dele- 
gation of  legislative  power  is  carried  on  the  European  con- 


146  THE  MECHANICS  OF  LAW  MAKING 

tinent,  and  I  have  said  that  so  extensive  a  delegation  of  legis- 
lative powers  would  not  be  tolerated  in  England. 

The  ordinary  Englishman,,  as  represented  by  the  average 
member  of  Parliament,  finds  some  difficulty  in  assenting  to 
the  proposition  laid  down  by  an  eminent  author1  that  "the 
substance  no  less  than  the  form  of  the  law  would,  it  is  prob- 
able, be  a  good  deal  improved  if  the  executive  government 
of  England  could,  like  that  of  France,  by  means  of  decrees, 
ordinances,  or  proclamations  having  the  force  of  law,  work 
out  the  detailed  application  of  the  general  principles  em- 
bodied in  the  Acts  of  the  legislature."  If  his  liberty  of  action 
is  to  be  subjected  to  restraint,  he  prefers  that  the  restraint 
should  be  imposed  by  laws  which  have  been  made  after 
public  discussion  in  a  representative  assembly.  He  readily 
admits  that  the  application  of  a  different  principle  is  in  ac- 
cordance with  the  habits  and  traditions  of  Continental 
countries,  and  is  necessary  in  countries  like  India,  but  he 
dislikes  its  application  at  home.  Therefore,  although  he 
acknowledges  the  impossibility  of  providing  for  every  detail 
in  an  Act  of  Parliament,  and  the  consequent  necessity  of 
leaving  minor  matters  to  be  regulated  by  statutory  rules  or 
by  executive  discretion,  he  scrutinises  with  a  jealous  eye 
provisions  which  delegate  the  power  to  make  such  rules  or 
which  leave  room  for  the  exercise  of  such  discretion,  and 
insists  that  they  should  be  carefully  expressed  and  limited, 
and  be  hedged  round  with  due  safeguards  against  abuse. 
A  great  deal  of  this  jealousy  is  a  survival  from  an  older  state 
of  things,  for  it  must  be  remembered  that  in  a  country  like 
modern  England  public  opinion  is  the  most  effectual,  and  is 
usually  a  sufficient,  safeguard  against  any  serious  abuse  of 
statutory  powers.  Moreover,  I  doubt  whether  the  control 

1  Dicey,  Law  of  the  Constitution  (7th  ed.),  p.  50. 


FORMS  OF  LEGISLATION  147 

of  Parliament  over  the  details  of  legislation  and  adminis- 
tration is  less  effective  in  the  present  day  than  it  was  in  days 
when  Acts  of  Parliament  were  more  minute  in  their  pro- 
visions. For  instance,  a  reference  to  Hansard's  reports  of  par- 
liamentary debates  will  show  that  down  to  a  comparatively 
recent  date  the  number  of  the  members  who  took  part  in  a 
legislative  debate,  and  the  number  of  the  amendments 
moved,  were  far  smaller  than  it  is  now,  and  that  there  was  a 
much  greater  readiness  to  take  long  and  complicated  measures 
on  trust,  and  to  accept  them  without  examination  of  details. 
These  considerations  are  of  great  weight  and  supply  a  sound 
argument  for  justifying  the  modern  practice  of  delegating 
power  to  legislate  on  matters  of  minor  importance.  It  is, 
indeed,  the  increased  vigilance  and  intelligence  of  members 
and  their  constituents  which  has  increased  the  difficulty  of 
passing  legislative  measures  through  Parliament,  and  has 
rendered  necessary  the  adoption  of  various  expedients  for 
shortening  and  simplifying  their  form,  expedients  of  which 
the  delegation  of  legislative  powers  is  among  the  most  legit- 
imate. But,  unless  the  temper  of  Parliament  should  ma- 
terially change,  attempts  to  give  delegated  powers  in  unduly 
wide  terms,  or  to  extend  them  beyond  matters  of  minor  im- 
portance, or  to  strain  their  exercise,  might  produce  a  reaction 
which  would  have  a  mischievous  and  embarrassing  effect  on 
the  form  of  parliamentary  legislation.  If,  however,  the  dele- 
gation of  legislative  powers  is  kept  within  due  limits  and 
accompanied  by  due  safeguards,  it  facilitates  both  discussion 
and  administration. 

It  facilitates  discussion  because  it  concentrates  attention 
on  the  main  questions,  and  prevents  waste  of  time  on  minor 
and  subordinate  issues.  It  facilitates  administration  be- 
cause every  administrative*  change  is  in  the  nature  of  an 


148  THE  MECHANICS  OF  LAW  MAKING 

experiment.  The  precise  mode  in  which  the  change  will 
work  out,  the  exact  means  by  which  its  object  can  best  be 
effected,  cannot  be  determined  with  certainty  beforehand, 
and  consequently  the  machinery  must  be  made  elastic. 
This  elasticity  can  best  be  given  by  allowing  the  details  to  be 
worked  out  on  the  general  lines  laid  down  by  the  supreme 
legislature,  either  by  statutory  rules  or  by  official  practice, 
subject  to  the  check  of  public  opinion  and  questions  in 
Parliament. 

As  I  have  said,  public  opinion  is,  in  a  country  like  modern 
England,  a  very  powerful  safeguard  against  any  serious 
abuse  of  statutory  powers. 

Under  our  parliamentary  system  any  exercise  of  executive 
action  by  the  government  (and  the  making  of  rules  and 
orders  is  such  an  exercise)  may  be  made  the  subject  of 
questions  in  Parliament  (the  notice  paper  of  the  House  of 
Commons  swarms  with  questions  of  this  kind)  or  may  be 
discussed  and  debated  on  the  vote  for  what  you  would  call 
the  appropriations  required  for  the  expenditure  of  the  de- 
partment concerned.  A  minimum  number  of  days  is  set 
apart  in  each  session  for  the  discussion  of  these  votes  in 
committee  of  supply,  —  one  of  the  committees  of  the  whole 
House,  —  and  any  abuse  or  wrongful  exercise  of  these  powers 
might  bring  about  a  vote  of  censure  and  downfall  of  the 
government.  Therefore,  the  ordinary  right  of  parliamen- 
tary criticism  is  a  great  safeguard  against  the  abuse  of  del- 
egated legislative  powers.  But  in  many  cases  further  safe- 
guards against  secret,  arbitrary,  or  oppressive  action  are 
expressly  provided.  In  some  cases  the  department  which 
makes  a  rule  or  order  is  required  to  publish  a  preliminary 
draft  for  general  criticism.  This  obligation  is  imposed  by  a 
general  Act  called  the  Rules  Publication  Act,  1893,  in  the 


FORMS  OF  LEGISLATION  149 

classes  of  cases  to  which  that  Act  applies.  Usually  statutory 
rules  and  orders  are  expressly  required  by  the  Act  which 
authorises  their  making  to  be  laid  upon  the  table  of  each 
House  of  Parliament,  and  are  thus  made  parliamentary 
papers,  and  so  brought  to  the  knowledge  of  members  of 
Parliament  and  others.  Very  often  they  are  expressly 
made  subject  to  disallowance  by  resolution  of  either  House, 
if  that  resolution  is  passed  within  a  limited  time.  The  form 
of  control  reserved  by  the  legislature  varies  in  different  cases, 
and  is  a  frequent  topic  of  debate  when  bills  proposing  to 
delegate  legislative  powers  are  under  discussion  in  Parlia- 
ment. 

Until  a  recent  date  a  very  real  and  formidable  objection 
to  this  method  of  delegating  legislative  powers  lay  in  the 
difficulty  of  knowing  where  the  rules  and  orders  made  under 
the  delegated  powers  were  to  be  found,  and  sometimes  in 
the  difficulty  of  obtaining  copies  of  them.  The  provision 
made  for  the  due  publication  of  this  branch  of  law  was 
extremely  insufficient  and  unsatisfactory.  But  this  has  now 
been  met,  and,  I  think,  satisfactorily  met.  Under  arrange- 
ments which  came  into  force  in  1890  the  statutory  rules  and 
orders  of  each  year  are  now  officially  published  in  a  form 
corresponding  to  that  of  the  annual  statutes,  an  index  to 
them  is  periodically  revised  and  published,  and  a  complete 
collection  of  the  statutory  rules  and  orders  for  the  time  being 
in  force,  corresponding  to  the  edition  of  the  revised  statutes, 
is  also  periodically  revised,  edited,  and  published  by  official 
authority. 


VIII 
CODIFICATION 

IT  is  now  time  that  I  should  say  something  about  codi- 
fication, using  the  term  in  its  stricter  sense,  as  distinguished 
from  the  consolidation  of  statute  law.  I  said  in  an  earlier 
chapter  that  codification  in  this  stricter  sense  might  be 
described  as  the  reduction  into  systematic  form  of  the  whole 
of  the  law,  whether  statute  law  or  common  law,  relating  to  a 
given  subject.  But  I  should  like  this  to  be  taken  as  a  pro- 
visional description,  subject  to  the  qualifications  to  which  I 
shall  refer  hereafter  about  the  possibility  of  codifying  the 
whole  of  any  given  branch  of  law.  I  said  also  that  codi- 
fication stands  in  a  different  category  from  the  humbler  and 
more  modest  processes  of  improving  the  statute  law  by  in- 
dexing, expurgation,  revision,  and  consolidation,  because, 
from  the  English  point  of  view,  it  represents  rather  an  ideal 
to  be  arrived  at  than  a  programme  likely  to  be  realised,  at 
all  events  in  the  near  future.  But,  just  because  codification 
is  an  ideal  to  be  aimed  at,  its  meaning  and  objects  ought  to 
be  understood  by  the  draftsman  of  statutes.  For  he  ought 
to  think  of  each  enactment  as  a  chapter,  or  a  fragment  of  a 
chapter,  of  an  ideal  code,  and  consider  it  in  its  relations  to 
the  whole  branch  of  law  with  which  it  is  cognate. 

Now  codification  is  a  vast  subject,  and  a  portentous 
amount  of  literature  has  been  devoted  to  it.  I  must  content 
myself  with  touching  lightly  on  one  or  two  of  its  aspects, 
and  must  confine  myself  to  codification  as  practised  or 

150 


CODIFICATION  151 

attempted  in  modern  times.  Let  me  put  two  or  three  ques- 
tions. What  are  the  objects  at  which  codification  should 
aim?  What  has  actually  been  done,  in  modern  times,  in 
different  countries  towards  codifying  the  law,  or  important 
branches  of  the  law?  What  have  been  the  chief  motive 
forces  which  have  enabled  modern  legislatures  to  achieve 
the  objects  of  codification  and  to  surmount  its  difficulties? 
Why  have  these  difficulties  been  surmounted  in  some  coun- 
tries and  not  in  others  ?  What  advantages  may  be  claimed 
for  codification  as  actually  carried  out  in  recent  times  ? 

The  word  codification,  as  distinguished  from  the  theory, 
was  invented  by  Bentham,  who  was,  as  I  have  said,  a  great 
coiner  of  words.  So  we  are  entitled  to  ask  Bentham  what 
meaning  he  himself  attached  to  the  term,  and  I  will  give  his 
answer  as  nearly  as  possible  in  his  own  language.  His  answer 
is  to  be  found  in  his  General  View  of  a  Complete  Code  of  Laws. 

"  The  object  of  a  code  is  that  every  one  may  consult  the  law 
of  which  he  stands  in  need,  in  the  least  possible  time.  '  Citi- 
zen/ says  the  legislator,  'what  is  your  condition?  Are  you 
a  father?  Open  the  chapter  "Of  Fathers."  Are  you  an 
agriculturist  ?  Consult  the  chapter  "Of  Agriculture." '.  .  .  A 
complete  digest,  such  is  the  first  rule.  Whatever  is  not  in 
the  code  of  laws  ought  not  to  be  law.  .  .  .  The  great  utility 
of  a  code  of  laws  is  to  cause  the  debates  of  lawyers  and  the 
bad  laws  of  former  times  to  be  forgotten.  ...  Its  style  should 
be  characterised  by  force,  harmony,  and  nobleness.  With 
this  view,  the  legislator  might  sprinkle  here  and  there  moral 
sentences,  provided  they  were  very  short,  and  in  accordance 
with  the  subject,  and  he  would  not  do  ill  if  he  were  to  allow 
marks  of  his  paternal  tenderness  to  flow  down  upon  his 
paper,  as  proof  of  the  benevolence  which  guides  his  pen.  .  .  . 
A  code  framed  upon  these  principles  would  not  require 


152  THE  MECHANICS  OF  LAW  MAKING 

schools  for  its  explanation,  would  not  require  casuists  to  un- 
ravel its  subtleties.  It  would  speak  a  language  familiar  to 
everybody ;  each  one  might  consult  it  at  his  need.  It  would 
be  distinguished  from  all  other  books  by  its  greater  simplicity 
and  clearness.  The  father  of  a  family,  without  assistance, 
might  take  it  in  his  hand  and  teach  it  to  his  children,  and 
give  to  the  precepts  of  private  morality  the  force  and  dignity 
of  public  morals.  The  code  having  been  prepared,  the  in- 
troduction of  all  unwritten  law  should  be  forbidden.  Judges 
should  not  make  new  law.  Commentaries,  if  written,  should 
not  be  cited.  ...  If  a  judge  or  advocate  thinks  he  sees  an 
error  or  omission,  let  him  certify  his  opinion  to  the  legislature, 
with  the  reasons  of  his  opinion  and  the  correction  he  would 
propose.  .  .  .  Finally,  once  in  a  hundred  years,  let  the  laws 
be  revised  for  the  sake  of  changing  such  terms  and  expres- 
sions as  by  that  time  may  have  become  obsolete." 

In  short,  the  code  was  to  be  complete  and  self-sufficing, 
and  was  not  to  be  developed,  supplemented,  or  modified  ex- 
cept by  legislative  enactment. 

These  views  were  characteristic  of  the  age  in  which  Ben- 
tham  wrote.  It  was  an  age  of  great  ideals.  It  underrated 
the  difficulties  of  carrying  them  into  execution.  It  over- 
rated the  powers  of  government.  It  broke  violently  with  the 
past.  It  was  deficient  in  the  sense  of  the  importance  of  his- 
tory and  of  historical  knowledge.  It  aimed  at  finality,  and 
made  insufficient  allowance  for  the  operation  of  natural 
growth  and  change.  It  forgot  Bacon's  maxim  that  subtilitas 
naturae  subtilitatem  artis  multis  partibus  superat.  It  ignored 
or  underestimated  differences  caused  by  race,  climate,  re- 
ligion, physical,  social,  and  economic  conditions. 

Bentham's  views  as  to  what  could  or  should  be  achieved 
by  codification  have  long  since  been,  if  not  abandoned,  at 


CODIFICATION  153 

least  materially  modified.  We  are  all  now  agreed  that  a 
good  code  must  often  —  perhaps  should  always  —  content 
itself  with  the  statement  of  general  principles,  that,  however 
complete  and  full  it  may  be,  it  can  never  supply  rules  appli- 
cable by  an  ordinary  intellect  to  every  possible  case,  that  the 
work  of  interpreting  the  law  and  of  applying  its  general 
rules  to  particular  cases  must  be  left  to  the  judges,  that  the 
sound  interpretation  of  legal  definitions  and  legal  rules  re- 
quires a  knowledge  of  legal  history,  and  that  the  exercise  of 
the  power  of  interpretation  and  application  necessarily  in- 
volves the  formulation  of  subordinate  and  supplemental 
rules. 

I  now  come  to  my  next  question :  What  has  been  done 
within  recent  times,  say  since  the  beginning  of  the  last  cen- 
tury, in  different  countries,  in  the  way  of  codifying  the  law, 
or  any  important  branches  of  the  law,  on  the  principles  now 
generally  accepted  as  applicable  to  codification?  With 
this  question  I  can  only  deal  in  a  very  short  and  summary 
manner. 

In  the  beginning  of  the  last  century,  France  led  the  way, 
gave  the  impetus,  and  supplied  the  models  for  codification, 
by  passing  the  famous  Codes  Napoleon,  the  five  codes  of  which 
the  Code  Civil  is  the  best  known  and  the  most  important. 
Among  the  countries  which  have  either  adopted  the  French 
Civil  Code,  or  have  taken  it  as  a  model,  are  Belgium,  Holland, 
Italy,  Spain,  and  Portugal,  on  the  continent  of  Europe,  besides 
Mexico  and  Chili,  on  this  side  of  the  Atlantic,  and  Japan  in 
the  far  East.  Germany,  working  on  independent  lines, 
produced  a  Civil  Code  in  1896,  after  a  period  of  gestation  of 
twenty  years,  and  brought  it  into  operation  in!900.  Switzer- 
land passed  an  admirable  law  of  obligations  in  1883,  and 
enacted  a  general  Civil  Code  in  1907. 


154  THE  MECHANICS  OF  LAW  MAKING 

Within  the  British  dominions,  British  India  has  led  the 
way  in  codification,  and  the  Indian  Codes  are  well  known  and 
have  exercised  extensive  influence.  The  self-governing 
dominions  of  the  British  Empire  and  her  colonies  have  not 
made  such  rapid  progress  with  codification  as  British  India, 
but  are  in  some  respects  in  advance  of  the  mother  country. 

In  the  United  Kingdom  codification  of  the  common  law 
has  made  very  little  progress.  Only  four  codifying  Acts 
have  been  passed  by  the  Parliament  at  Westminster.  They 
are  the  Bills  of  Exchange  Act  of  1882,  the  Partnership  Act  of 
1890,  the  Sale  of  Goods  Act  of  1893,  and  the  Marine  Insurance 
Act  of  1906.  Of  these  the  Partnership  Act  was  drawn  by 
Sir  Frederick  Pollock,  the  others  by  Sir  Mackenzie  Chalmers. 
All  of  them  are  excellent  specimens  of  codification,  but  they 
deal  only  with  special  subjects  and  cover  a  small  extent  of 
ground. 

About  the  progress  and  prospects  of  codification  in  the 
United  States,  and  about  the  way  in  which  your  codes  work, 
and  the  advantages  derived  from  their  enactment,  it  is  for 
you  to  teach  me  and  for  me  to  learn.  What  I  knew  on  the 
subject  in  1901  is  to  be  found  in  a  book  of  mine  that  was  pub- 
lished in  that  year.  But  my  knowledge  was  very  incom- 
plete, and  I  should  be  grateful  to  anyone  who  would  help  me 
by  supplementing  my  information  and  correcting  my  errors. 

Now,  why  is  it  that  in  England  codification  on  the  more 
extensive  and  ambitious  scale  has  made  no  way,  is  making 
no  way,  and  has  practically  no  effective  body  of  public  or 
professional  opinion  to  move  it  on,  whilst  in  countries  like 
France  and  Germany  it  is  not  only  a  success,  but  a  popular 
success?  I  am  confining  myself  to  the  old  world  because  I 
know  too  little  about  the  forces  which  make  for  and  against 
codification  in  the  United  States  to  be  able  to  generalise 


CODIFICATION  155 

about  them.  And  I  select  France  and  Germany  because 
they  are  two  great  countries  which  have  pursued,  and  achieve 
the  same  object  by  independent  routes. 

I  believe  that  it  was  the  pressure  of  practical  needs  that 
mainly  brought  about  the  enactment  of  great  codes  in  France 
and  Germany,  and  that  it  was  the  presence  and  pressure  of 
these  needs  there,  and  their  absence  in  England,  that  mainly 
account  for  the  success  of  codification  in  those  two  coun- 
tries and  the  failure  to  create  anything  more  than  a  languid 
interest  in  the  subject  in  England.  And  of  those  practical 
needs  that  which  was  felt  most  strongly  was  the  need  for 
unification  of  the  law.  It  was  the  strong  desire  to  unify  the 
substance  of  law,  not  the  desire  to  improve  its  form  —  never, 
I  fear,  a  very  strong,  effective,  or  operative  motive  with  legis- 
latures—  it  was  the  sense  of  the  practical  inconveniences 
arising  from  diversities  of  law  that  successfully  surmounted 
the  difficulties  which  stand  in  the  way  of  codification. 

Let  me  support  and  illustrate  this  statement  by  reminding 
you  of  the  causes  which,  as  a  matter  of  history,  led  up  to  the 
enactment  of  the  great  French  Codes  at  the  beginning  of 
the  last  century,  and  the  enactment  of  the  great  German  Code 
at  its  end. 

The  French  Civil  Code  celebrated  its  centenary  rather 
more  than  nine  years  ago  —  I  went  over  to  Paris  to  attend  the 
celebration  —  and  its  centenary  produced  a  set  of  very  in- 
teresting studies  upon  the  Code  by  eminent  men,  studies  on 
its  origin,  its  working,  its  interpretation,  its  influence  on  the 
development  of  French  law,  its  influence  on  the  legislation 
of  other  countries,  and  many  other  cognate  matters.  The 
two  volumes  which  contain  these  studies  are  entitled  Code 
Civil  —  Livre  du  Centenaire,  and  are  well  worth  the  attention 
of  those  who  care  about  the  subject  of  codification. 


156  THE  MECHANICS  OF  LAW  MAKING 

We  associate  the  Civil  Code  with  the  name  of  Napoleon, 
and  we  do  so  rightly  because  of  the  prominent  part  which  he 
played  in  its  passage  into  law.  But  the  Code  really  was, 
like  Napoleon  himself,  a  child  of  the  French  Revolution  of 
1789. 

Consider  then  the  condition  of  French  law  in  1789.  In- 
stead of  one  civil  code  for  the  whole  country,  there  were  at 
least  360  local  codes  of  civil  law,  some  applying  to  a  whole 
province,  some  to  a  much  smaller  district.  The  whole 
country  was  divided  almost  equally  into  two  great  legal 
regions ;  the  region  of  the  written  law,  based  on  the  Roman 
law  of  Theodosius  and  Justinian,  and  the  region  of  customary 
law.  Each  of  these  two  systems  of  law  was  compatible  with 
local  diversities,  but  each  of  them  had  its  common  and  dis- 
tinctive features.  The  written  law  was  more  authoritative 
and  individualist ;  the  customary  law  was  more  humane  and 
sociable.  Both  of  them  were  supplemented,  modified,  or 
contradicted  by  three  other  general  systems  of  law;  the 
feudal  law,  which  recognised  two  separate  classes  of  blood 
with  consequential  distinctions  of  personal  rights ;  the  canon 
law,  which  exercised  a  preponderating  influence  on  many 
parts  of  the  law  of  persons,  especially  on  the  law  of  marriage ; 
and  the  royal  ordinances,  which  cut  into  the  common  law  as 
statute  law  cuts  into  common  law  in  England  and  in  this 
country.  All  these  laws  were  modified  by  local  usages 
expounded  by  voluminous  commentaries,  and  interpreted  by 
conflicting  and  varying  decisions  of  numerous  courts. 

This  was  the  state  of  things  with  which  the  revolution  of 
1789  was  confronted.  But  here,  as  in  other  cases,  the  Revolu- 
tion merely  set  loose,  or  gave  an  impulse  to,  forces  which 
had  long  been  at  work.  The  unity  of  French  law  had  been 
the  dream  of  French  kings  from  the  time  of  Louis  XI,  if 


CODIFICATION  157 

not  from  the  time  of  St.  Louis.  Two  factors  made  for  unity : 
in  the  South  the  principles  of  the  Roman  law  tended  to  super- 
sede local  customs ;  in  the  North  the  custom  of  Paris  tended 
to  supplant  other  customs.  Under  Charles  VIII  and  Louis 
XII  vigorous  and  systematic  efforts  were  made  to  digest  the 
customary  law,  and  by  the  end  of  the  sixteenth  century  the 
customs  of  all  the  provinces  had  been  reduced  to  a  written 
and  authoritative  form.  From  the  twelfth  to  the  seventeenth 
centuries  the  French  law  was  being  frequently  altered  by 
royal  ordinances;  but  these  ordinances  answered  to  our 
amending  Acts,  and  whilst  they  might  improve  the  substance 
of  the  law,  they  did  not  necessarily  make  it  more  simple  or 
uniform.  The  ordinances  of  Louis  XIV  and  Louis  XV,  which 
were  associated  with  the  names  of  Colbert  and  D'Aguesseau, 
were  of  a  different  character.  They  were  codes.  They 
were  framed  by  learned  commissions,  presented  in  a  com- 
plete and  systematic  form  the  whole  of  a  particular  branch  of 
the  law,  and  extended  to  the  whole  of  the  country.  They 
were  the  immediate  predecessors  of  the  Napoleonic  Codes, 
and  to  a  great  extent  suggested  their  form  and  supplied  their 
materials. 

Throughout  the  eighteenth  century  almost  all  enlightened 
opinion  in  France  —  Montesquieu  was  an  exception  —  was 
strongly  in  favour  of  unifying  French  law.  Pothier  was 
formulating  and  arranging  its  principles,  and  expressing 
them  in  terms  capable  of  being  transferred  bodily  into  the 
codes  of  the  future.  It  has  been  said  that  three-fourths  of 
the  Civil  Code  of  1804  was  extracted  from  his  treatises. 
Everything  pointed  in  the  direction  of  the  Codes,  but  until 
the  Revolution  the  forces  which  made  for  privilege  and 
diversity  were  still  too  strong  to  be  overcome.  Nor  do  the 
cahiers  of  1789  —  the  budgets  of  grievances  which  were  laid 


158  THE  MECHANICS  OF  LAW  MAKING 

before  the  National  Assembly  —  disclose  any  strong  or 
general  demand  for  unity  of  law ;  they  were  more  concerned 
with  particular  local  and  personal  grievances.  It  was  the 
wonderful  night  of  the  4th  of  August,  1789,  when  the  priv- 
ileged classes  joined  in  making  a  holocaust  of  their  privileges, 
when  the  different  classes  and  peoples  that  made  up  France 
were  fused  into  a  single  mass  —  it  was  this  night  that  opened 
the  doors  for,  and  ushered  in,  the  new  legislation.  A  year 
afterwards,  on  the  16th  of  August,  1790,  the  National  As- 
sembly decreed  that  "  the  civil  laws  shall  be  revised  and  re- 
formed by  the  Legislature,  and  there  shall  be  a  general  code  of 
laws,  simple,  clear,  and  appropriate  to  the  constitution."  And 
the  constitution  of  September,  1791,  repeated  that  "There  shall 
be  made  a  code  of  civil  laws  common  to  the  whole  kingdom." 

But  it  was  not  enough  to  declare  uniformity  of  law  as  a 
principle.  There  was  a  preliminary  question,  What  law 
was  to  be  adopted?  How  was  the  whole  system  based  on 
privilege  and  inequality  to  be  reconciled  with  the  new  prin- 
ciples of  liberty  and  equality?  When  there  was  a  conflict 
between  the  principles  of  two  rival  systems,  such  as  the 
written  law  and  the  customary  law,  which  was  to  prevail? 
Amendment  had  to  precede  codification. 

The  work  of  amendment  was  carried  out  by  a  series  of 
revolutionary  laws,  and  the  double  process,  that  of  amending 
and  that  of  codifying  the  rules  of  the  civil  law,  occupied  a 
period  of  some  fifteen  years.  This  period  may  be  divided 
into  two  lesser  periods,  one  from  1789  to  1794,  the  other 
from  1794  to  1804.  The  first  was  a  period  of  progress,  not 
always  enlightened;  the  second  was  a  period  of  reaction, 
not  always  obscurantist.  During  the  first  period  the  prin- 
ciples which  prevailed  were  those  of  liberty  and  equality; 
during  the  second  period  they  were  order  and  authority. 


CODIFICATION  159 

During  the  first  the  influence  of  philosophers  predominated, 
during  the  second  the  influence  of  lawyers. 

Let  me  touch  on  the  principal  changes  effected.  Under 
the  old  regime  the  law  of  persons  was  based  on  privilege,  in- 
equality, disabilities.  There  were  nobles,  roturiers,  and,  in 
some  places,  serfs.  The  clergy  had  their  immunities  and 
their  disabilities;  the  " religious"  incurred  civil  death.  The 
alien,  the  Protestant,  and  the  Jew  were  subject  to  serious 
disabilities.  A  series  of  enactments  swept  away  these 
differences  and  established  broadly  the  principle  of  equality 
of  civil  rights.  Marriage,  under  the  old  regime,  belonged 
to  the  domain  of  the  canon  law,  and  was  under  the  control 
of  the  clergy.  The  Revolution  set  up  civil  registers  of  births, 
marriages,  and  deaths,  made  marriages  a  civil  contract,  and 
recognised  divorce.  In  family  law  it  reduced  the  power  of 
the  father  and  raised  the  position  of  the  wife.  In  the  law 
of  succession  two  rival  principles  were  found  in  conflict  with 
each  other :  the  principle  of  individual  liberty  made  for 
freedom  of  testation,  the  principle  of  equality  made  against 
it.  The  Roman  law  of  the  South  favoured  the  former  prin- 
ciple, the  customs  of  the  North  the  latter.  Mirabeau, 
though  a  Southerner,  in  the  great  speech  which  was  read 
to  the  National  Assembly  the  day  after  his  death,  declared 
for  the  principle  of  equality,  and  it  prevailed.  The  laws  of 
nature  were  recognized  by  placing  illegitimate  children,  for 
purposes  of  succession,  on  a  footing  almost  equal  to  that  of 
legitimate  children.  Succession  in  accordance  with  primo- 
geniture, and  entails,  were  abolished.  The  enjoyment  of 
the  land  had  been  fettered  by  a  multiplicity  of  burdensome 
dues,  superiorities,  and  servitudes.  The  men  of  the  4th  of 
August  proclaimed  in  general  terms  the  emancipation  of  the 
land,  and  left  their  successors  to  work  out  the  problem.  It 


160  THE  MECHANICS  OF  LAW  MAKING 

was  worked  out  in  very  rough-and-ready  fashion.  At  first 
an  attempt  was  made  to  distinguish  between  feudal  dues, 
which  were  to  be  abolished,-  and  contractual  dues,  which 
were  to  be  redeemed.  But  the  distinction  was  found  to  be 
untenable,  and  eventually  most  superior  rights  were  swept 
away  without  compensation.  When  the  State  had  entered 
into  the  inheritance  of  the  emigre,  it  endeavoured,  for  fiscal 
reasons,  to  restore  some  of  these  rights,  but  by  this  time  the 
position  of  the  occupier  had  become  inexpugnable,  and  the 
attempt  failed. 

By  all  these  radical  changes  the  ground  was  effectively 
cleared  for  a  code  of  uniform  civil  laws.  It  was  the  National 
Convention  that  first  took  practical  steps  for  the  preparation 
of  such  a  code.  In  October,  1792,  they  appointed  a  Com- 
mittee of  legislation,  consisting  of  forty-eight  members,  with 
Cambace*r£s  as  President.  The  Committee  held  evening 
sittings,  which  began  at  six  or  seven,  and  often  lasted  until 
eleven.  They  worked  with  enormous  industry  and  with 
feverish  rapidity,  but  their  pace  did  not  satisfy  the  Conven- 
tion. On  the  25th  of  June,  1793,  a  member  of  the  Conven- 
tion proposed  and  carried  a  resolution  that  the  Committee 
of  legislation  should  present  a  plan  of  a  Civil  Code  within  a 
month,  and  such  a  plan  was  actually  expounded  to  the  Con- 
vention by  Cambace"r£s  on  the  9th  of  the  following  August. 
This,  it  will  be  remembered,  was  in  the  midst  of  the  Terror. 
Cambace're's'  Code  followed  the  traditional  plan  of  Justinian's 
Institutes,  and  was  to  be  divided  into  four  books,  of  which, 
however,  the  fourth,  relating  to  procedure,  was  never  drawn 
up.  It  consisted  of  719  articles,  and  embodied,  according 
to  M.  Viollet,  the  great  historian  of  French  law,  a  "  clear 
methodical  scheme."  The  Convention,  in  the  midst  of  war, 
tumult,  and  proscription,  peacefully  discussed  the  laws  of 


CODIFICATION  161 

succession,  alluvion,  and  natural  children,  from  the  22d  of 
August  to  the  28th  of  October,  but  eventually  laid  aside  the 
general  scheme  as  too  complex,  though  they  passed  parts  of 
it  into  law.  I  take  the  subsequent  stages  from  the  valuable 
chapter  which  M.  Viollet  has  contributed  to  the  eighth 
volume  of  the  Cambridge  Modern  History. 

"On  September  9,  1794  (23  Fructidor  of  the  Year  ii),  the 
Committee  presented  a  second  scheme  of  297  articles,  a  sort 
of  summary,  which  only  contained  the  principles  involved 
and  their  immediate  consequences.  The  Convention  soon 
perceived  that  this  was  more  the  skeleton  of  a  code  than  the 
Code  itself.  The  discussion  of  it  was  suspended.  A  third 
scheme  was  presented,  not  to  the  Convention,  but  to  the 
Council  of  Five  Hundred,  by  the  so-called  Commission  for 
the  classification  of  laws  (June  14,  1796  —  24  Prairial  of  the 
Year  iv).  This  scheme,  which  according  to  Portalis  was  a 
masterpiece  of  method  and  exactness,  was  scarcely  examined 
and  remained  almost  entirely  a  dead  letter.  Jacqueminot 
presented  a  fourth  scheme  to  the  Legislative  Commission  of 
the  Council  of  Five  Hundred  (30  Frimaire  of  the  Year  viii 
-December  21,  1799).  This  project  was  not  discussed. 
Finally  an  order  from  the  Consuls  (24  Thermidor  of  the 
Year  viii  —  August  12,  1800)  commissioned  Tronchet,  Male- 
ville,  Bigot,  Preameneu,  and  Portalis,  to  draw  up  a  fresh 
project  for  a  Code.  This  fifth  scheme  developed  into  the 
Civil  Code ;  an  imperfect  piece  of  work  it  certainly  was,  but 
wise,  well  weighed,  and  saturated  with  traditional  elements. " 

Napoleon,  as  is  well  known,  felt  a  keen  interest  in  the  Civil 
Code.  He  presided  over  35  out  of  the  87  sittings  of  the 
Council  of  State  at  which  the  draft  Code  was  discussed.  He 
took  an  active  and  effective  share  in  the  discussions  of  the 
draft,  and,  above  all,  supplied  the  driving  force  without  which 


162  THE  MECHANICS  OF  LAW  MAKING 

it  would  probably  not  have  become  law.  He  is  reported  to 
have  said  at  St.  Helena  that-  his  glory  did  not  consist  in  his 
having  won  forty  battles,  but  in  the  Civil  Code  and  in  the 
deliberations  of  his  Council  of  State.  A  brilliant  description 
of  the  part  which  he  played  in  the  formation  of  the  Code 
will  be  found  in  a  chapter  which  Mr.  Herbert  Fisher  has  con- 
tributed to  the  eighth  volume  of  the  Cambridge  Modern 
History.  Napoleon's  sympathies  were,  on  the  whole,  and 
especially  in  the  domain  of  family  law,  with  the  reaction 
which  had  set  in  since  1794  against  the  principles  of  1789. 
He  thought  that  the  Revolution  had  unduly  disturbed  the 
foundations  of  family  life.  He  held  that  the  legislator,  far 
from  encouraging  the  indefinite  subdivision  of  property, 
should  aim  at  securing  a  nation  of  moderate  fortunes.  He 
was  a  keen  advocate  of  the  subjection  of  women.  He  thought 
that  it  was  the  function  of  law  to  chasten  loose  morals,  to 
exhibit  the  solemnity  and  sanctity  of  marriage,  to  strengthen 
the  authority  of  the  father,  and  to  maintain  the  cohesion  of 
the  family  group.  These  views,  which  were  shared  by  many 
others,  find  their  reflection  in  the  Code,  which,  on  many 
points,  partially  retraces  the  steps  that  had  been  taken  since 
1789.  Civil  death  was  restored.  A  retrograde  step  was 
taken  by  basing  the  civil  rights  of  aliens  on  the  principle  of 
reciprocity  instead  of  on  the  principle  of  equality.  The 
power  of  the  father  was  restored,  the  civil  status  of  women 
was  depressed.  The  grounds  of  divorce  were  diminished  in 
number,  but  divorce  by  mutual  consent  was,  mainly  through 
Napoleon's  influence,  allowed.  Illegitimate  children  were 
less  favourably  treated.  Testamentary  powers  were  some- 
what enlarged.  The  main  lines  of  the  revolutionary  law  of 
succession  and  of  property  had  been  too  firmly  established, 
and  were  too  consonant  with  the  wishes  of  the  people  at 


CODIFICATION  163 

large,  to  be  set  aside.  But  on  many  points  the  Code  is  a 
compromise,  and  not  always  a  logical  compromise.  In  the 
conflict  between  the  written  law  of  the  South  and  the  cus- 
tomary law  of  the  North,  the  customary  law,  which  had  en- 
joyed the  advantage  of  being  expounded  by  Pothier,  pre- 
vailed on  the  whole,  but  the  Southern  lawyers  were  propitiated 
by  an  express  recognition  of  the  regime  dotal  in  marriage,  as 
an  alternative  to  the  regime  communal. 

I  have  described  at  some  length  the  origin  and  history  of 
the  French  Civil  Code,  because,  in  discussing  the  aims, 
objects,  and  difficulties  of  codification,  it  is  worth  while  to 
confirm  and  illustrate  one's  general  statements  by  concrete 
examples,  and  no  better  example  could  be  found  than  the 
most  famous  code  of  modern  times. 

Let  me  now  say  something,  but  more  briefly,  about  the 
origin  and  history  of  the  German  Civil  Code,  the  great  Code 
which  came  into  existence  at  the  end  of  the  last  century  as 
the  French  Code  did  at  its  beginning. 

The  tide  of  Napoleonic  invasion  brought  the  French  Codes 
into  the  Rhenish  provinces,  where  they  obtained  a  permanent 
footing.  Thibaut  (1814)  preached  to  Germans  the  duty  of 
codifying  their  law  on  French  lines,  but  Savigny,  in  his 
powerful  counterblast,  pointed  out  (and  exaggerated)  the 
imperfections  of  the  French  Codes,  and  told  his  countrymen 
bluntly  that  they  had  not  yet  acquired  either  the  knowledge 
of  legal  principles,  or  the  experience,  or  the  terminology, 
requisite  for  successful  codification.  German  codification 
slumbered  until  1848,  when  it  was  awakened  by  the  revival 
of  the  desire  for  national  unity.  A  general  law  of  bills  of 
exchange  (Wechselordnung)  was  discussed  by  representatives 
of  all  the  German  States,  and  promulgated  as  a  law  of  the 
short-lived  empire  which  followed  the  events  of  1848.  It 


164  THE  MECHANICS  OF  LAW  MAKING 

was  either  confirmed  or  introduced  as  a  separate  State  law 
by  most  of  the  German  States  between  1848  and  1850.  In 
a  similar  way,  the  German  Commercial  Code  was  passed  as  a 
State  law  by  most  of  the  individual  States,  including  Austria, 
between  1862  and  1866.  During  the  same  period  Saxony 
codified  its  own  law.  The  events  of  1866  and  of  1870  gave  a 
powerful  impulse  to  German  codification.  In  1871,  the  Bills 
of  Exchange  Code  and  the  Commercial  Code  were  re-enacted 
as  Imperial  laws.  A  Criminal  Code  which  in  1870  had  been 
passed  for  the  North  German  Confederation  also  became  a 
law  of  the  Empire.  Codes  of  Civil  and  Criminal  Procedure, 
a  code  organising  the  Courts  throughout  Germany  on  a  uni- 
form system,  and  establishing  a  Supreme  Court  of  Appeal 
at  Leipzig,  and  the  Bankruptcy  Code,  came  into  force  in 
1879.  Among  the  matters  also  dealt  with  by  Imperial  legis- 
lation were  the  laws  relating  to  marriage  and  registration, 
to  copyright,  and  to  patents  and  trade  marks.  But  as  to 
matters  not  regulated  by  Imperial  legislation,  the  local  law 
was  still  applicable.  "  Speaking  broadly,"  wrote  Dr.  Schuster 
in  1896,  "  it  may  be  stated  that  out  of  a  population  of  42| 
millions,  18  millions  are  governed  by  the  Prussian  Code,  14 
millions  by  the  German  common  law,  which  remains  the 
modernised  law  of  Justinian,  7J  millions  by  French  law, 
2J  millions  by  Saxon  law,  and  half  a  million  by  Scandinavian 
law.  There  are,  therefore,  six  general  systems  of  law,  but 
only  two  out  of  these,  the  system  of  the  French  and  that  of 
the  Saxon  Code,  are  exclusive  systems ;  the  other  systems 
are  broken  into  by  laws  and  customs.  .  .  .  The  result  is 
that  in  every  case  which  arises  in  Germany,  the  following 
questions  must  be  asked:  Is  there  any  imperial  statute? 
Is  there  any  local  modern  statute?  Is  the  subject  affected 
by  older  legislation  ?  What  local  law  governs  it  ?  " 


CODIFICATION  165 

It  was  the  confusion  and  the  practical  difficulties  arising 
from  this  multiplicity  and  diversity  of  laws  that  gave  force 
to  the  demand  for  the  general  Civil  Code,  which  has  formed 
the  coping-stone  of  German  Codification.  The  first  Com- 
mission for  preparing  a  draft  Civil  Code  for  the  German 
Empire  was  appointed  on  July  2,  1874,  and  submitted  its 
draft  to  the  Imperial  Chancellor  towards  the  end  of  1887. 
A  second  Commission  was  appointed  in  April,  1891,  and 
completed  its  work  in  June,  1895.  On  the  basis  of  this 
second  draft,  a  third  draft  was  prepared  by  the  Federal 
Council  and  submitted  to  the  Reichstag  at  the  beginning 
of  1896,  and  after  being  discussed  and  amended  was  passed 
into  law  on  August  18,  1896.  The  Code  came  into  operation 
on  January  1,  1900. 

It  will  have  been  seen  that  the  impulses  to  codification  in 
Germany  were  substantially  the  same  as  in  France,  but  that, 
owing  to  a  variety  of  causes,  those  impulses  produced  their 
effects  at  a  later  date. 

It  was  the  pressure  of  practical  needs  that  gave  the  impulse 
to  codification  both  in  France  and  in  Germany.  And  it 
was  practical  needs  that  gave  the  impulse  to  codification  in 
British  India.  Of  the  circumstances  which  gave  rise  to  the 
Indian  Codes,  of  their  origin,  history,  and  nature,  I  have 
treated  at  large  elsewhere.1  The  most  serious  of  the  practical 
difficulties  which  the  earlier  Indian  Codes  were  intended  to 
meet  were  the  impossibility  for  Englishmen  to  administer 
the  Mohammedan  criminal  law,  and  the  need  of  authori- 
tative manuals  for  the  use  of  embarrassed  judges  and  magis- 
trates. Among  the  Anglo-Indian  codes  Macaulay's  Penal 
Code  stands  first,  first  in  point  of  time  and  first  in  point  of 
merit.  The  brief  preamble  recites  that  it  is  expedient  to 

1  Government  of  India,  Ch.  IV. 


166  THE  MECHANICS  OF  LAW  MAKING 

provide  a  general  penal  code  for  British  India.  And  the 
expediency  of  providing  such  a  code  is  apparent  if  you  bear 
in  mind  the  state  of  things"  which  it  was  intended  to  meet. 
When  the  Code  came  into  force,  the  condition  of  the  criminal 
law  in  British  India  was  this :  In  the  three  Presidency 
towns, — Calcutta,  Madras,  and  Bombay, — the  criminal  law 
in  force  was  the  criminal  law  of  England,  unreformed  for 
Indian  purposes  except  by  three  or  four  scattered  enact- 
ments. Outside  the  three  Presidency  towns  the  criminal 
law  was  partly  the  law  introduced  by  the  Mohammedan 
conquerors  of  India,  and  partly  the  law  established  by  cer- 
tain Anglo-Indian  regulations.  The  English  criminal  law 
was  a  formless,  artificial,  and  complicated  system,  framed 
without  reference  to  Indian  circumstances,  and  even  in 
England  considered  to  require  extensive  reform.  The 
Mohammedan  criminal  law  was  unsuitable  to  a  civilised 
country.  The  Anglo-Indian  Regulations  were  made  by 
three  different  legislatures  —  those  of  the  three  old  Presi- 
dencies —  and  contained  widely  different  provisions,  and 
many  of  those  provisions,  according  to  a  distinguished  pred- 
ecessor of  mine  in  India,  were  amazingly  unwise.  It 
was  to  meet  these  circumstances  that  Macaulay  drew  up 
his  famous  Penal  Code.  His  code  is  methodically  arranged, 
is  expressed  in  clear  and  simple  language,  is  framed  in  accord- 
ance with  the  general  principles  of  English  criminal  law, 
but  in  some  respects  modifies  the  application  of  those  prin- 
ciples so  as  to  adapt  them  to  special  Indian  conditions. 
Macaulay's  Penal  Code  is  a  work  of  genius,  but  it  slumbered 
in  the  Indian  archives  for  nearly  a  quarter  of  a  century 
before  it  found  its  place  in  the  Indian  statute  book.  This 
Penal  Code  was  supplemented  by  Codes  of  Civil  and  Crim- 
inal Procedure,  which  have  been  revised  and  recast  from 


CODIFICATION  167 

time  to  time,  and  these  three  codes  met  the  most  pressing 
needs  of  the  Indian  case.  Then  came  a  number  of  codifying 
Acts  or  codes,  the  object  of  each  of  which  was  to  supply, 
for  the  guidance  of  untrained  judges  and  magistrates,  a  set 
of  rules  based  on  English  law,  but  expressed  in  a  form  which 
those  who  had  to  administer  them  could  easily  understand, 
and  adapted  by  modifications  to  the  circumstances  of  the 
country.  This  is  the  class  of  Acts  to  which  belong  the  Evi- 
dence Act,  the  Contract  Act,  the  Succession  Act,  the  Specific 
Relief  Act,  the  Negotiable  Instruments  Act,  the  Trusts  Act, 
the  Transfer  of  Property  Act,  and  the  Easements  Act. 

It  was  my  duty,  during  one  period  of  my  official  life,  to 
pay  a  good  deal  of  attention  to  these  Indian  Codes,  and  they 
have  been  the  subject  of  much  discussion  and  criticism. 
They  have,  in  my  opinion,  been  overpraised  and  overblamed. 
There  has  been  a  tendency,  on  the  one  hand,  to  overpraise 
their  formal  merits,  and,  on  the  other  hand,  to  underrate 
their  practical  utility  as  instruments  of  government.  Their 
workmanship,  judged  by  European  standards,  is  often  rough, 
but  they  are  on  the  whole  well  adapted  to  the  conditions 
which  they  were  intended  to  meet.  High  Court  judges  and 
the  advocates  who  practised  before  them  were,  in  my  time, 
accustomed  to  speak  in  depreciatory  terms  about  these 
codes,  but  I  think  it  probable  that  these  critics  ignored  or 
overlooked  the  extent  to  which  the  Codes  have  been  found 
useful  by  up-country  judges  and  magistrates  who  have  to 
administer  justice,  as  best  they  can,  at  a  distance  from  law 
libraries  and  without  the  help  of  a  trained  bar.  One  of  the 
criticisms  which  I  used  to  hear  most  frequently  was  that 
some  of  the  Codes  were  framed  too  much  with  reference  to 
theoretical  considerations  and  not  enough  with  reference  to 
practical  needs,  and  I  am  inclined  to  think  that  there  was 


168  THE  MECHANICS  OF  LAW  MAKING 

some  foundation  for  this  criticism.  My  immediate  prede- 
cessor in  India,  the  late  Mr.  Whitley  Stokes,  an  eminent 
man,  who  was  not  only  a  learned  lawyer  and  skilful  drafts- 
man, but,  incidentally,  a  first-rate  Celtic  scholar,  was  the 
draftsman  of  some  of  these  codes,  and  brought  out  a  useful 
edition  of  them.  He  was  fond  of  referring  in  his  comments 
to  the  absence  or  paucity  of  judicial  decisions  on  a  particular 
Act  as  evidence  that  it  was  working  well  or  smoothly,  by 
which  he  meant  that  it  had  not  been  vilified  or  nullified  by 
the  judges.  But  I  sometimes  wondered  whether  the  infer- 
ence to  be  drawn  in  some  cases  was  not  rather  that  the  Act 
had  been  working  'in  vacuo,'  without  much  practical  opera- 
tion. It  is  comparatively  easy  to  pass  laws  in  India;  the 
difficulty  is  in  making  them  work.  They  are  apt  to  remain 
for  an  indefinite  time  "in  the  air,"  and  when  they  touch  earth 
they  sometimes  operate  in  unexpected  fashion. 

I  can  give  you  a  very  curious  illustration  of  this  statement. 
One  of  the  codifying  Acts  —  the  Indian  Succession  Act  — 
embodies  substantially  the  rules  of  English  law  as  to  suc- 
cession to  personal  property.  It  was  framed  for  Indian  use 
by  a  learned  body  of  Law  Commissioners  sitting  in  England, 
and  was  carried  through  the  Governor-general's  Legislative 
Council  in  India  by  Sir  Henry  Maine,  when  he  was  Law 
Member  of  that  Council.  But  Sir  Henry  Maine  found  that 
the  provisions  of  this  Act  would  not  suit  the  circumstances 
or  requirements  of  the  most  numerous  and  important  classes 
in  India,  and  was  therefore  compelled  to  make  important 
exceptions  from  its  application.  The  rules  of  English  law 
as  to  succession  to  property  would  not  suit  Hindus,  or 
Mohammedans,  or  Buddhists,  or  Sikhs,  or  Jains.  All  these 
classes  had  quite  different  rules  of  inheritance  of  their  own, 
which  they  wished  to  keep,  and  so  they  had  to  be  exempted. 


CODIFICATION  169 

Nor  was  the  law  required  'for  succession  to  the  movable 
property  of  persons  domiciled  in  England  or  elsewhere  out  of 
India.  That  succession  was  to  continue  to  be  governed  by 
the  law  of  the  deceased  persons'  domicile.  The  result  was 
that  the  exceptions  which  had  to  be  made  from  the  applica- 
tion of  the  law  covered  almost  all  the  propertied  classes  in 
India.  These  large  exemptions  may  account  for  the  fact 
that  the  law  worked  smoothly,  to  use  Mr.  Whitley  Stokes' 
phrase,  and  did  not  give  much  occupation  to  the  courts. 

There  was,  however,  one  class,  an  important,  but  in  India 
not  a  very  numerous,  class,  whom  Sir  Henry  Maine  persuaded 
to  accept  his  Act.  These  were  the  Jews,  who  are  always 
willing  to  accommodate  themselves  to  the  civil  law  of  the 
country  in  which  they  settle,  whilst  remaining  faithful  to 
their  own  religious  usages.  So  the  Indian  Succession  Act 
of  1865  was  made  applicable  to  the  Jews  of  British  India, 
who  are,  as  I  have  said,  a  comparatively  small  class  of 
persons.  All  went  well  for  about  twenty  years.  The  Act 
worked  smoothly.  But  in  or  about  the  year  1886,  when  I  was 
law  member  of  the  Governor-general's  Council  in  India,  an 
unexpected  difficulty  arose.  Aden,  the  Port  of  Aden, 
though  geographically  situated  in  Arabia,  is,  technically, 
part  of  British  India.  Therefore  an  Act  applying  to  the 
Jews  of  British  India  applies  to  the  Jews  of  Aden.  For 
some  twenty  years  the  Jews  of  Aden  seem  to  have  gone  on 
in  blissful  ignorance  of  the  law  which  had  been  passed  for 
them  by  the  government  of  India  in  1865.  At  last  a  case 
raising  a  question  of  succession  among  Aden  Jews  found  its 
way  into  the  Civil  Court  at  Aden.  The  judge  looked  up 
his  law,  found  that  the  Indian  Succession  Act  applied,  and 
decided  accordingly.  His  decision  very  much  fluttered  and 
perturbed  the  Jews  of  Aden,  because  it  was  quite  at  variance 


170  THE  MECHANICS  OF  LAW  MAKING 

with  their  ancient  customs.  So  the  Jews  of  Aden  sent  a 
deputation  to  the  government  of  India  representing  their 
grievance,  and  the  deputation  was  received  by  me  on  behalf 
of  the  government.  They  explained  their  grievance,  which 
was  that  this  new-fangled  Act,  of  the  existence  of  which  they 
had  suddenly  become  aware,  was  quite  inconsistent  with 
their  old  law;  that  the  Jews  of  Yemen,  the  part  of  Arabia 
in  which  Aden  is  situated,  had  been  under  this  old  law  for 
some  thousands  of  years,  that  it  gave  them  what  they  wanted, 
and  that  they  would  like  to  remain  under  it.  I  asked 
them  what  their  old  law  was,  and  they  referred  me  to  a 
passage  in  the  Pentateuch,  in  the  book  of  Numbers.  For- 
tunately I  had  a  copy  of  the  Old  Testament  in  my  bookcase, 
close  at  hand,  so  I  looked  up  the  passage  to  which  I  was 
referred.  It  contains  what  I  am  tempted  to  call,  if  I  may  do 
so  without  profanity,  the  ruling  in  Zelophehad's  case.1  Ze- 
lophehad,  you  may  remember,  was  a  man  of  the  tribe  of 
Manasseh,  who  died  leaving  no  son  but  five  daughters,  and 
these  daughters  came  to  Moses,  and  claimed  a  share  in  their 
father's  inheritance.  Thereupon  it  was  declared,  on  the 
highest  authority,  through  Moses,  that  if  a  man  died  leaving 
daughters  but  no  son,  his  inheritance  should  pass  to  his 
daughters.  That  declaration  was  modified  by  a  subsequent 
provision,2  that  if  a  daughter  married  out  of  her  tribe,  she 
should  forfeit  her  share.  Let  me  remark,  parenthetically, 
that  this  rule,  and  especially  the  exception  about  daughters 
marrying  out  of  the  tribe,  represents  a  custom  or  customary 
law  with  which  I  was  not  unfamiliar.  The  Mohammedan 
law  of  inheritance  divides  the  property  of  a  deceased  person 
among  persons  called  "sharers,"  who  include  widows  and 
daughters.  There  are  a  great  many  Mohammedans  in  the 

1  Numbers  xxvii.  1-11.  2  Numbers  xxxvi. 


CODIFICATION  171 

Punjab,  who  are  supposed  to  be  bound  by  the  law,  the  divine 
law,  of  the  Koran,  but  the  application  of  this  law  is  much 
modified  by  local  and  tribal  customs.  They  have  a  general 
feeling  that  the  law  of  the  Koran  is  very  suitable  to  movable 
property,  such  as  a  flock  of  camels,  but  is  inconvenient  when 
applied  to  land.  They  sometimes  cut  down  the  widow's 
right  to  a  share  of  the  land  to  a  right  of  maintenance,  and 
nothing  would  induce  them  to  allow  a  female  sharer  to  carry 
by  marriage  any  portion  of  the  village  or  tribal  land  to  a 
person  who  is  a  stranger  to  the  village  or  tribe. 

But  to  return  to  my  visitors  from  Aden.  What  struck 
them  as  novel  and  monstrous  was  that  the  new  law  which 
had  come  upon  them  by  surprise  recognised  a  right  in  the 
inheritance  on  the  part,  not  only  of  the  children,  but  of  the 
widow,  for  whom  no  provision  was  made  by  the  Mosaic  law. 
They  asked  that  they  might  be  allowed  to  return  to  their  old 
law,  and  they  referred  me  to  a  section  of  the  Indian  Succes- 
sion Act  (s.  332)  which  enables  the  government  of  India  by 
executive  order  to  exempt  from  all  or  any  of  the  provisions 
of  the  Act  the  members  of  any  race,  sect,  or  tribe  in  British 
India  or  any  part  of  such  race,  sect,  or  tribe,  to  whom  it  may 
be  considered  impossible  or  inexpedient  to  apply  such 
provisions. 

The  request  struck  me  as  being  not  unreasonable.  But 
before  disposing  of  it,  I  made  two  stipulations.  The  first 
was  that  whatever  might  be  done  for  the  Jews  of  Aden  should 
not  be  construed  as  a  precedent  for  exempting  the  Jews  of 
British  India  proper,  who  had  accepted  the  Act  and  did  not 
complain  of  its  operation.  The  second  was  that  I  should  be 
supplied  with  an  authoritative  statement  of  the  laws  and 
customs  observed  by  the  Jews  of  Yemen ;  that  is  to  say,  of 
that  part  of  Arabia  in  which  Aden  lies.  Both  these  stipula- 


172  THE  MECHANICS  OF  LAW  MAKING 

tions  were  complied  with.  I  received  from  the  leading  Jews 
of  British  India  proper  an  assurance  that  they  would  not  ask 
for  any  exemption  for  themselves.  And  I  was  supplied  with 
an  extremely  interesting  statement  of  the  laws  and  customs 
of  the  Jews  of  Yemen,  showing  that  for  generations,  in  fact, 
during  an  indefinitely  long  period,  they  had  never  formed  part 
of  any  civilised  or  settled  State,  and  therefore  had  preserved 
their  ancient  laws  and  customs  in  an  exceptionally  uncon- 
taminated  form.  The  evidence  satisfied  me,  and  so,  at  my 
instance,  the  government  of  India  made  an  order  exempting 
the  Jews  of  Aden  from  the  operation  of  the  Indian  Succession 
Act,  and  remitting  them  to  the  Mosaic  code. 

I  have  travelled  a  long  way  from  the  French  and  German 
Codes,  from  the  West  to  the  East,  from  Napoleon  to  Moses. 

Now  let  me  come  back  to  the  thesis  which  I  was  trying  to 
enforce  and  illustrate,  which  was  this  —  that  the  great 
European  codes  represent  the  fruits  of  the  work  of  many 
generations,  that  the  difficulties  in  the  way  of  forming  a 
good  code,  especially  if  it  is  on  an  extensive  scale,  are  very 
serious,  that  they  are  only  surmounted  by  the  pressure  of 
practical  needs,  and  that  in  France  and  Germany,  which 
I  took  as  leading  examples,  the  need  which  mainly  supplied 
the  pressure  was  the  need  for  unification  of  a  country's  laws. 

If  this  thesis  can  be  maintained,  does  it  not  go  a  long  way 
to  explain  the  apathy  and  indifference  with  which  projects  of 
codification  are  generally  regarded  in  England  ? 

Our  great  Plantagenet  kings,  and  their  strong  central 
courts,  gave  England  many  centuries  ago  that  one  body  of 
general  law  for  which  France  had  to  wait  until  the  beginning 
of  the  nineteenth  century,  and  Germany  until  its  end. 

The  traditional  opinion  of  English  judges  and  lawyers 
has,  as  you  know,  always  been  unfavourable  to  codification. 


CODIFICATION  173 

They  believe  that  codes  tend  to  cramp  and  impede  the  free 
and  natural  growth  of  law.  How  far  that  belief  is  well 
founded  is  a  question  which  I  will  not  argue  here.  The  dis- 
cussion of  it  would  lead  me  into  wide  and  troubled  waters, 
and  would  at  any  rate"carry  me  far  beyond  my  proper  limits. 
I  will  content  myself  with  making  one  remark  of  general 
application,  and  then  considering,  very  briefly,  how  far  the 
forebodings  of  those  who  are  opposed  to  codification  on 
principle  have  been  justified  by  the  experience  gained  from 
the  actual  working  of  the  French  Codes,  after  they  have 
been  in  operation  for  more  than  a  century. 

The  general  remark  is  this  :  — 

As  long  as  a  nation  continues  to  live  and  grow,  nothing  can 
stop  the  growth  of  its  law.  The  rules  of  law  are  simply  those 
rules  of  conduct  which  are  enforced  by  the  State,  and  they 
have  to  be  applied  with  reference  to  the  political,  social,  and 
economic  conditions  of  the  time.  Absence  of  power  to  legis- 
late, or  failure  to  exercise  it,  may  impede,  cramp,  or  distort 
the  growth,  but  cannot  destroy  it.  The  stream  will  either 
burst  through,  or,  more  often,  find  its  way  by  tortuous  and 
unexpected  channels.  The  human  mind  displays  marvellous 
ingenuity  in  adapting  old  forms  to  new  conditions,  whether 
those  forms  are  embodied  in  codes  or  in  creeds.  The  prin- 
ciple of  development  has  been  applied,  not  only  to  theological 
formularies,  but  to  documents  like  the  Constitution  of  the 
United  States,  and,  under  the  pressure  of  inexorable  necessity, 
is  somehow  applied  in  apparent  defiance  of  the  rules  of  logic 
and  of  language. 

Moreover,  are  not  people  apt,  in  England,  and  possibly  in 
the  United  States  also,  to  exaggerate  both  the  flexibility  of 
the  common  law  and  the  rigidity  of  codes  ?  Are  we  not  all 
familiar  with  cases  in  which  the  highest  courts,  bound  as 


174  THE  MECHANICS  OF  LAW  MAKING 

they  are  by  precedents,  have  reflected  the  views  rather  of  a 
past  generation  than  of  the  present,  and  found  themselves 
unable  to  assert  for  themselves  or  to  recognise  in  others  those 
principles  of  liberty  and  development  which  are  essential 
to  organic  life  and  growth  ? 

Next  let  me  ask  this  question :  — 

What  has  been  the  verdict  of  history  on  the  Civil  Code? 
Perhaps  our  opinion  will  not  differ  much  from  Mr.  Fisher's 
summary  in  the  chapter  which  he  contributed  to  the  Cambridge 
Modern  History :  — 

"The  Civil  Code  was  a  hasty  piece  of  work ;  and  the  First 
Consul  imported  a  strong  gust  of  passion  and  politics  into 
the  laboratory  of  legal  science.  Civil  death  —  a  superan- 
nuated, unjust,  and  immoral  fiction  —  confiscation,  and  the 
position  of  women,  are  bad  blots  upon  the  page.  .  .  .  There 
is  also  much  disproportion  and  omission.  There  are  in- 
stances of  a  subject  being  discussed  in  the  Council,  then 
forgotten  and  allowed  to  lapse.  The  law  of  contract  is 
lifted  almost  bodily  from  Domat  and  Pothier.  But,  when 
all  deductions  have  been  made  for  haste,  negligence,  and 
political  perversion,  it  remains  a  great  achievement.  It 
was  a  single  code  for  the  whole  of  France,  substantially  based 
upon  the  broad  historic  instincts  of  the  race,  while  preserving 
the  most  valuable  social  conquests  of  the  Revolution." 

Two  things,  at  any  rate,  the  Code  has  done.  It  has  familiar- 
ised all  Frenchmen  with  the  principles  of  the  law  which  they 
have  to  observe.  It  has  supplied  a  model  which  other 
nations  have  eagerly  and  extensively  copied. 

In  England  the  law  is  ordinarily  regarded  as  something 
technical,  mysterious,  not  to  be  understood  by  the  lay  folk. 
In  France  the  leading  provisions  of  the  Codes  have  become 
household  words.  They  form  the  topic  of  village  conversa- 


CODIFICATION  175 

tions.  Familiarity  with  them  is  presupposed  in  popular 
literature  and  on  the  stage.  Balzac,  the  great  novelist, 
though  a  legitimist,  was  saturated  with  the  Codes.  There 
are  few  better  commentaries  on  the  French  marriage  law 
than  his  Contrat  de  Mariage,  on  the  French  bankruptcy  law 
than  his  Cesar  Birotteau.  You  may  hear  an  article  of  the 
French  Penal  Code  referred  to  by  its  number  on  the  stage, 
and  the  reference  at  once  caught  up  by  the  audience.  A 
stage  reference  to  24  and  25  Viet.  c.  96,  s.  75,  would  not  meet 
with  much  response  from  an  English  gallery.1 

As  to  the  contagious  effect  of  the  French  Codes  on  neigh- 
bouring countries,  a  whole  series  of  studies  has  been  devoted 
to  the  subject  in  the  Centenary  volumes  to  which  I  have 
referred,  and  I  will  not  elaborate  the  topic  here. 

Then,  in  what  sense  and  to  what  extent,  have  the  French 
Codes  arrested  the  development  of  French  law?  I  think 
that  they  have  to  some  extent,  but  more  in  the  domain  of 
procedure  than  of  substantive  law,  more  in  the  sphere  of 
commercial  law,  where  the  Code  de  Commerce  followed  too 
closely  antiquated  models,  than  in  the  sphere  of  general  civil 
law,  and,  hi  the  whole  field  of  law,  to  a  much  less  extent 
than  is  generally  supposed  in  this  country.  French  lawyers 
recognise  three  modes  by  which  law  is  developed  :  legislation, 
jurisprudence,  or  case  law,  and  doctrine,  that  is  to  say,  the 
teachings  and  writings  of  learned  lawyers.  I  doubt  whether 
we  have  realised  —  certainly  I  myself  had  not  realised  until 

1  Provisions  of  English  law  have  sometimes  been  utilised  by  English 
novelists.  For  instance,  the  plot  of  George  Eliot's  Felix  Holt,  which  is 
said  to  have  been  suggested  to  her  by  Mr.  Frederic  Harrison,  is  based  on  the 
rules  of  English  real  property  law  with  respect  to  the  succession  to  what 
conveyancers  call  a  '  base  fee.'  But,  as  a  general  rule,  the  notions  of  English 
novelists  about  English  law  strike  a  professional  lawyer  as  eccentric  and 
surprising,  and  do  not  indicate  much  familiarity  with  the  principles  of  the 
law  which  the  authors  are  supposed  to  understand  or  observe. 


176  THE  MECHANICS  OF  LAW  MAKING 

recently  —  the  extent  to  which  the  Civil  Code  has  been 
altered  by  legislation,  especially  within  the  last  twenty  or 
thirty  years.  I  took  up  recently  a  little  pocket  edition  of 
the  Civil  Code,  showing  in  a  convenient  form  the  existing 
text  of  the  law  and  the  original  articles  of  the  Code.  The 
existing  text  is  printed  in  ordinary  type ;  the  original  articles 
are  in  italics.  Let  me  take  the  first  chapter  of  the  first  title 
of  the  first  book.  It  relates  to  the  enjoyment  of  civil  rights, 
and  consists  of  ten  articles.  Of  these  only  three  remain; 
the  other  seven  have  been  repealed  and  replaced  by  others. 
Of  the  original  seventeen  articles  in  the  second  chapter  not 
one  remains ;  all  have  gone,  including  the  articles  which  recog- 
nise civil  death.  The  provisions  relating  to  registration  of 
births,  marriages,  and  deaths  have  been  materially  amended. 
Many  of  the  obnoxious  articles  relating  to  the  position  of 
women  still  remain,  and  their  survival  explains  the  hostile 
demonstrations  against  the  Civil  Code  which,  at  the  time  of 
the  celebration  of  its  centenary,  were  made  at  the  Sorbonne 
and  in  the  Rue  de  Rivoli.  But  wives  and  husbands  have 
been  put  on  a  footing  of  equality  as  regards  divorce  for 
adultery,  and  the  whole  law  of  divorce  has  been  completely 
recast  by  the  laws  of  1884  and  1886.  It  may  be  remembered 
that  divorce  was  recognised  in  1804,  abolished  in  1816,  and 
restored  in  1884,  but  under  different  conditions.  The  power 
of  the  father  over  neglected  OP  ill-used  children  has  been 
restricted  by,  and  may  be  taken  away  under,  a  law  of  1889, 
which  enables  the  State  to  intervene  in  the  case  of  such 
children. 

The  law  of  succession  has  also  been  materially  altered. 
The  disabilities  of  aliens  in  the  matter  of  succession  were 
removed  as  long  ago  as  1819.  By  a  law  of  1891  the  surviving 
husband  or  wife  was  given  a  share  or  interest  in  the  inheri- 


CODIFICATION  177 

tance,  notwithstanding  the  existence  of  children.  The  rules 
as  to  the  succession  rights  of  illegitimate  children  were  com- 
pletely remodelled  in  1896.  The  technical  rules  which  re- 
quire children  claiming  a  share  of  the  inheritance  to  account 
for  advances  made  by  the  parent  during  his  lifetime  were 
amended  in  1898.  Succession  duties  on  inheritance  are  now 
regulated  by  the  fiscal  laws  of  1901,  1902,  and  1903.  The 
law  as  to  wills  made  by  soldiers  and  on  board  ship  was 
amended  in  1893  and  1900.  In  the  chapters  relating  to 
property  law  the  rules  with  respect  to  party  walls,  boundary 
fences,  and  ways  of  necessity  were  altered  in  1881,  and  those 
as  to  alluvion  and  water  rights  in  1898. 

The  important  chapters  of  the  Code  which  relate  to  delicts 
and  quasi-delicts  have  been  supplemented  and  materially 
altered  by  the  laws  of  1898,  1899,  and  1902  for  regulating  the 
responsibility  of  employers  in  the  case  of  accidents  to  their 
workmen.  The  rules  as  to  the  contract  of  service  in  the 
case  of  domestic  servants  and  workmen  had  been  previously 
expanded  and  made  more  precise  by  a  law  of  1890. 

The  famous  association  law  of  1901,  with  its  supplementary 
decrees,  though  best  known  in  its  bearing  on  religious  con- 
gregations, is  of  much  wider  application,  and  in  the  latest 
editions  of  the  Civil  Code  finds  its  place  as  part  of,  or  a  supple- 
ment to,  the  title  relating  to  the  contrat  de  societe.  The  law 
as  to  aleatory  contracts  was  supplemented  by  a  law  of  1900 
as  to  gambling  on  the  Stock  Exchange.  And,  finally,  I 
may  note  that  imprisonment  for  debt  was  abolished  in  1867. 

I  have  not,  of  course,  attempted  an  exhaustive  statement  of 
the  changes  made  in  the  Civil  Code  since  the  date  of  its 
enactment,  but  I  am  sure  that  I  have  said  enough  to  show 
that  it  has  never  been  treated  by  the  French  legislature  as  a 
sacrosanct  or  verbally  inspired  document. 


178  THE  MECHANICS  OF  LAW  MAKING 

Bentham  looked  forward  to  a  time  when  case  law,  or,  as 
he  preferred  to  call  it,  judge-made  law,  would  be  superseded 
by  codes,  and  when  commentaries  would  be  consigned  to  the 
lumber  room.  If  his  views  could  be  accepted,  the  French 
Civil  Code  must  be  pronounced  to  be  a  failure.  It  has  not, 
fortunately  for  us,  stopped  or  made  unnecessary  historical 
inquiries  into  French  law  as  it  stood  before  1804.  It  has  not 
checked  the  production,  or  prevented  the  citation,  of  com- 
mentaries. That  it  has  not  arrested  the  development  of 
jurisprudence,  the  numerous  and  portly  volumes  of  Dalloz 
can  testify.  Expressions  not  unlike  those  of  Bentham  may  be 
found  in  the  reports  presented  by  Cambace*re"s  on  his  earliest 
projects  of  codification.  But  these  were  the  views,  or  at 
least  the  expressions,  of  the  Cambace*res  of  the  Convention, 
not  of  Cambace*r£s  the  Consul,  and  there  is  no  reason  to  sup- 
pose that  the  framers  of  the  Code  of  1804  shared  the  illusions 
of  1793.  On  the  contrary,  it  would  be  easy  to  quote  from  the 
preliminary  report  of  the  Commission  of  the  Year  viii  pas- 
sages which  lay  stress  on  the  inevitable  imperfections  of  a 
code,  and  recognise  fully  the  necessity  for  the  completing 
and  supplementary  action  of  judges. 

What  the  Code  has  really  done  for  French  jurisprudence 
has  been  to  simplify  and  facilitate  the  work  of  the  judges  by 
substituting  for  numerous  and  conflicting  laws  and  usages  a 
harmonious,  orderly,  and  authoritative  set  of  leading  rules. 
Nor  is  there  any  solid  ground  for  believing  that  the  codi- 
fication of  French  law  has  been  detrimental  in  France  to 
legal  literature  or  doctrine'.  We  are  indeed  told  by  some 
French  writers  of  authority  that  there  was  a  time  when  the 
teaching  in  the  French  law  schools,  and  the  legal  literature 
which  arose  out  of  and  gathered  round  these  schools,  threat- 
ened to  degenerate  into  arid  and  barren  commentaries  on 


CODIFICATION  179 

the  text  of  the  Civil  Code,  unilluminated  by  any  intelligent 
study  of  legal  history  or  by  a  scientific  appreciation  of  legal 
principles,  and  when  a  gradually  widening  breach  arose  be- 
tween the  law  as  taught  in  the  schools  and  the  law  as  de- 
veloped in  actual  practice  by  judicial  decisions.  Had  these 
tendencies  continued,  they  would  have  supplied  the  ground 
for  a  formidable  indictment  against  codification.  But  if 
the  same  authorities  are  to  be  trusted,  these  tendencies  have 
not  continued.  I  am  not  in  a  position  to  speak  from  personal 
knowledge  of  the  character  of  the  teaching  now  given  in 
French  schools  of  law.  It  may  be  that  a  good  deal  of  it,  as 
of  the  teaching  in  other  schools,  is  lifeless  and  mechanical. 
But  there  seems  strong  evidence  to  show  that  during  recent 
years  much  has  been  done  in  the  French  Universities  to 
improve  the  teaching  and  study  of  law,  and  that  the  ten- 
dency during  the  last  quarter  of  a  century  has  been  to  stop 
the  threatened  divorce  between  theory  and  practice,  by  in- 
sisting on  study  of  the  texts  being  accompanied,  illustrated, 
and  vitalised  by  study  of  judicial  decisions,  and  at  the  same 
time  to  widen  and  deepen  the  theoretical  study  of  law  by 
dwelling  on  its  historical  and  comparative  aspects.  The 
influence  of  the  late  M.  Esmein,  to  mention  only  one 
well-known  name,  has  been  exercised  strongly  in  this  direc- 
tion. Certainly  the  legal  literature  of  France  has  no  reason 
to  fear  comparison  with  the  legal  literature  of  countries  which 
are  blessed,  or  otherwise,  with  immunity  from  codes.  Take, 
for  instance,  the  department  of  legal  history.  We  are  in- 
debted to  Sir  Frederick  Pollock  and  the  late  Professor  Mait- 
land  for  a  fragment  —  a  most  brilliant  fragment,  it  is  true, 
but  merely  a  fragment  —  of  the  history  of  English  law.  But 
we  have  not  as  yet  any  comprehensive  history  of  English 
law  as  a  whole;  we  have  nothing  that  could  be  compared 


180  THE  MECHANICS  OF  LAW  MAKING 

with  the  works  of  M.  Viollet  and  M.  Esmein  on  the  history 
of  French  law.  The  French  Society  of  Comparative  Legis- 
lation, which  was  founded  in  1869,  and  which  was  largely 
responsible  for  the  celebration  of  the  centenary  of  the  Code 
Civil,  has  done  and  is  doing  excellent  work  in  familiarising 
French  lawyers  with  the  legislation  of  other  countries.  And 
the  historical  and  scientific  study  of  law  is  by  no  means  con- 
fined to  Paris. 

To  the  advanced  and  scientific  student  of  law  the  Code 
Civil  has  supplied  a  framework  to  be  filled  in,  supplemented, 
and  illustrated.  And  to  the  ordinary  student  of  law  it  is  an 
inestimable  boon  that  he  should  be  able  to  find,  within 
reasonable  compass,  an  orderly  and  authoritative  statement 
of  the  leading  rules  of  his  craft.  A  few  years  ago  a  young 
French  lawyer  wrote  to  me  from  a  French  provincial  town, 
applying  to  me  as  a  brother  member  of  the  Societe  de  Legis- 
lation Comparative,  for  information  about  a  point  of  English 
legal  procedure,  and  he  wound  up  by  asking  me,  with  much 
simplicity,  whether  I  could  refer  him  to  any  concise  and  com- 
plete work  on  English  civil  law.  I  was  unable  to  comply 
with  this  request,  and  was  obliged  to  say  that  there  was 
nothing  in  England  that  corresponded  to  the  French  Code 
Civil.  Was  this  answer  quite  satisfactory?  But  could 
any  more  satisfactory  answer  have  been  given  ? 


IX 

SOME  CHARACTERISTICS  OF  MODERN 
LEGISLATION 

IF  I  were  dealing  with  my  subject  professorially,  I  might 
ask  you  to  consider  it,  on  a  far  more  extensive  scale  than  I 
have  attempted,  from  a  comparative  point  of  view,  to  con- 
sider how  enacted  laws  are  in  fact  made  in  the  different 
civilised  countries  of  the  modern  world,  what  different 
methods  of  making  them  are  adopted,  what  advantages  may 
be  claimed  for  the  several  methods,  what  are  their  defects. 
This  would  be  a  very  large  subject ;  and  it  is  one  which,  so 
far  as  I  know,  has  never  been  adequately  dealt  with,  though 
some  useful  works  have  been  written  about  certain  parts  or 
aspects  of  it.  I  would  mention  in  particular  the  book  of 
your  eminent  countryman,  President  Lawrence  Lowell,  on 
Government  and  Parties  in  Continental  Europe.  But  in  this 
region  of  study  a  large  field  still  remains  untilled,  and  de- 
serves the  application  of  labour  which  would  be  fruitful  and 
valuable.  Any  one  who  would  undertake  the  task  of  survey 
and  comparison  which  I  have  indicated  would  find  his  toil 
materially  facilitated  by  two  things  :  — 

The  first  is,  that  there  is  an  agreement  among  all  civilised 
nations  as  to  the  general  principles  on  which  legislative  pro- 
cedure should  be  founded.  A  modern  law  is  not  brought 
down  from  Sinai,  or  imposed  by  the  will  of  an  irresponsible 
despot.  Every  important  law  must,  before  it  takes  its  final 
shape,  be  submitted  to  the  scrutiny  and  criticism  of  a  popular 
assembly  created  for  that  purpose,  and  be  liable  to  amend- 

181 


182  THE  MECHANICS  OF  LAW  MAKING 

ment  and  rejection  by  that  assembly.  The  extent  to  which 
this  process  of  scrutiny,  criticism,  and  amendment  is  applied, 
and  the  methods  by  which  it  is  applied,  differ  according  to 
the  nature  of  the  subject-matter,  and  the  procedure,  habits, 
and  idiosyncrasies  of  the  legislature.  The  subject  of  a  law 
may  be  so  technical,  and  popular  confidence  in  the  skill, 
care,  and  ability  of  those  who  prepared  it  may  be  so  great, 
that  it  passes  through  the  legislature  practically  without 
criticism  or  alteration.  Some  of  the  great  codifying  measures 
of  recent  times  have  had  this  good  fortune,  though  it  must  be 
remembered  that  the  German  Civil  Code,  perhaps  the 
greatest,  and  certainly  one  of  the  most  carefully  prepared,  of 
all  these  measures,  underwent  not  only  effective  criticism, 
but  substantial  alteration,  in  its  passage  through  the  Ger- 
man Reichstag.  On  the  other  hand,  any  measure  propos- 
ing important  administrative  or  fiscal  changes,  restricting 
or  regulating  the  freedom  of  action  of  any  class  of  the  com- 
munity, or  materially  affecting  their  economic  condition, 
ought  to  undergo,  and  is  pretty  certain  to  undergo,  severe 
scrutiny  by  the  representatives  of  the  people.  But  liability 
to  this  scrutiny  exists  in  all  cases,  and  one  of  the  most  diffi- 
cult of  the  problems  of  modern  legislation  is  how  to  reconcile 
the  right  of  criticism  and  amendment  which  is  properly 
claimed  by  a  popular  legislative  assembly  with  the  precision 
of  language,  the  elegance  and  symmetry  of  form,  which  are 
the  characteristics  of  a  good  law. 

General  agreement  as  to  the  broad  principles  by  which 
legislative  procedure  should  be  guided  is,  then,  one  of  the 
things  which  facilitate  comparison.  Another  is  that  both 
the  constitution  and  the  procedure  of  all  modern  legislatures, 
with  a  very  few  exceptions,  may  be  traced  back  to  a  single 
prototype,  the  Parliament  which  sits  at  Westminster. 


CHARACTERISTICS  OF  MODERN  LEGISLATION     183 

Upon  the  relations  of  affiliation  borne  to  the  constitution 
of  the  British  Parliament  by  the  constitution  of  the  American 
Congress  and  by  the  constitutions  of  the  legislatures  in  the 
British  dominions  it  is  unnecessary  to  dwell.  And  it  is  a 
commonplace  of  history  that  when  the  constitutions  of 
European  countries  were  being  refashioned  after  the  sub- 
sidence of  the  Napoleonic  deluge  in  1815  the  British  Parlia- 
ment, with  its  two  Houses,  was  generally  adopted  as  a  pattern. 

As  regards  legislative  procedure  I  may  remind  you  that  in 
every  self-governing  dominion  of  the  British  empire  the 
instrument  of  constitution  always  contains  a  provision  that 
the  procedure  of  the  legislature  is,  in  the  absence  of  specific 
direction,  to  be  in  accordance  with  parliamentary  procedure 
in  England,  and  that  the  standing  orders  of  those  legislatures 
are  based  on  those  in  force  at  Westminster  and  on  the  pro- 
cedure described  in  Erskine  May's  great  treatise.  But 
about  the  relation  between  parliamentary  procedure  in 
England  and  parliamentary  procedure  in  foreign  countries, 
it  may  be  worth  while  to  say  a  little  more. 

Among  foreign  countries  it  would  be  technically  right  to 
class  the  United  States,  but  it  seems  unnatural  so  to  class, 
and  it  is  always  repugnant  to  me  so  to  class,  a  great  country 
the  spirit  of  whose  institutions  is  so  essentially  British.  All 
that  I  need  do  here  is  to  remind  you  how  Thomas  Jefferson, 
before  he  became  President  of  the  United  States,  but  when 
he  was  Vice-president  and  therefore  President  of  the  Senate, 
compiled  for  the  use  of  the  Senate  a  manual  of  procedure 
based  on  the  practice  of  the  British  Parliament.  Since 
then  the  procedure  of  both  branches  of  Congress  has  been 
largely  modified  by  subsequent  orders,  rulings,  and  prece- 
dents, but  Jefferson's  manual  is  still  embedded  as  a  kernel 
in  the  stout  volume  which  answers  more  or  less  to  the  English 


184  THE  MECHANICS  OF  LAW  MAKING 

May.  Any  one  who  is  familiar  with  parliamentary  proce- 
dure at  Westminster  and  visits  Washington  cannot  fail  to 
be  struck  with  the  curious  traces  of  English  eighteenth  cen- 
tury procedure  which  still  survive  there. 

About  the  way  in  which  English  parliamentary  procedure 
found  its  way  into  France,  and  how,  through  France,  its  in- 
fluence permeated  other  parts  of  Europe,  less  is  generally 
known,  and  on  the  first  of  these  two  points,  the  introduction 
of  English  parliamentary  procedure  into  France,  I  am 
tempted  to  quote  the  accounts  given  by  two  men,  each  of 
whom  was  entitled  to  speak  with  high  authority,  and  I  am 
the  more  inclined  to  do  so,  because  for  one  of  these  accounts 
you  would  have  to  search  the  recesses  of  an  English  blue 
book. 

You  are  probably  familiar  with  the  name  of  Etienne  Du- 
mont,  the  citizen  of  Geneva  who  was  the  friend  of  Romilly 
and  the  interpreter  of  Bentham.  At  the  outbreak  of  the 
French  Revolution  in  1789,  Dumont  was  in  Paris,  and  was 
in  close  and  intimate  relations  with  Mirabeau.  No  one  was 
a  greater  adept  at  picking  other  men's  brains  than  that  un- 
principled genius,  and  Dumont  was  largely  employed  by 
him  in  writing  his  speeches,  and  composing  the  literature 
which  he  scattered  broadcast,  and  generally  in  helping  him 
in  his  work  with  the  National  Assembly.  In  fact,  he  devilled 
for  Mirabeau  on  an  extensive  scale.  One  of  the  first  things 
required  was  to  devise  some  kind  of  procedure  for  that  new- 
born and  unorganised  body,  the  National  Assembly,  and 
this  is  what  Dumont,  in  his  Souvenirs  sur  Mirabeau,  tells  us 
about  the  proposals  on  the  subject.  He  writes :  — 

"Romilly  had  done  a  very  interesting  piece  of  work  on  the 
rules  observed  by  the  House  of  Commons  in  England.  These 
rules  are  the  fruit  of  reasoned  experience,  and  the  more  they 


CHARACTERISTICS  OF  MODERN  LEGISLATION     185 

are  examined,  the  more  they  are  admired.  They  are  customs 
carefully  preserved  in  a  body  very  averse  to  innovations. 
They  are  not  reduced  to  writing;  to  state  them  requires 
great  care  and  great  trouble.  Romilly's  little  Code  indicated 
the  best  way  of  putting  questions,  of  preparing  motions,  of 
debating  them,  of  taking  votes,  of  appointing  committees,  of 
passing  business  through  its  various  stages;  in  a  word,  all 
the  tactics  of  a  political  assembly.  I  had  translated  this 
treatise  at  the  beginning  of  the  States  General.  Mirabeau 
presented  it  to  the  House  and  laid  it  on  the  table  when  there 
was  a  proposal  to  draw  up  rules  of  procedure  for  the  National 
Assembly.  '  We  are  not  English,  and  we  don't  want  anything 
English/  This  was  the  reply  made  to  him." 

So  far  Dumont.  Now  let  us  hear  what  was  said  about 
the  same  subject  many  years  afterwards  by  a  great  French 
statesman.  In  the  summer  of  1848  Guizot  was  in  England, 
having  been  driven  from  France  by  the  Revolution  of  Feb- 
ruary. In  that  summer  a  select  committee  of  the  House 
of  Commons  was  sitting  to  consider  the  public  business  of 
the  House,  and  on  the  31st  of  July  Guizot  was  called  to  give 
evidence  before  it.  Evelyn  Denison,  afterwards  Speaker, 
was  in  the  chair,  and  the  first  question  —  a  very  leading 
question  —  which  he  put  to  Guizot,  was  this:  "Were  the 
rules  and  orders  of  the  French  Chamber  originally  very 
nearly  the  same  as  those  of  the  House  of  Commons?" 

Guizot 's  answer  was :  "Yes.  In  the  beginning  of  our  con- 
stituent assembly  at  the  Revolution,  Mirabeau  asked  Etienne 
Dumont  to  give  him  a  sketch  of  the  proceedings  of  the 
English  House  of  Commons,  and  Etienne  Dumont  gave  to 
Mirabeau  such  a  sketch,  which  is  printed  in  a  work  called 
The  Tactics  of  Political  Assemblies,  and  the  sketch  of  Etienne 
Dumont  became  the  model  of  the  first  rules  of  our  National 


186  THE  MECHANICS  OF  LAW  MAKING 

Assembly.  So  that  in  the  beginning  of  our  Revolution  the 
proceedings  of  your  House  of  Commons  became  the  source 
of  ours.  In  1814,  when  the  charter  was  granted  by  the  King 
[Louis  XVIII]  the  same  rules  were  adopted,  with  some 
changes." 

You  will  see  that  the  two  accounts  do  not  quite  tally. 
Dumont's  requires  some  supplementing;  Guizot's  a  little 
correction.  What  really  happened  seems  to  have  been 
this.  The  treatise  prepared  by  Romilly,  and  translated  by 
Dumont,  was  published  as  a  pamphlet,  and  was  subsequently 
absorbed  into  and  incorporated  in  a  larger  work  which  was 
inspired  by  Bentham,  and  based  upon  his  notes,  but  was 
written  by  Dumont,  and  given  by  him  to  the  world  in  1815 
under  the  title  of  La  tactique  des  assemblies  legislatives. 
This  work,  of  which  a  second  edition  appeared  in  1822, 
exercised  a  very  great  influence  on  statesmen  and  on  political 
writers  and  thinkers,  not  only  in  France,  but  in  other  parts  of 
Europe,  and  much  use  was  made  of  the  information  and  sug- 
gestions which  it  contained  in  framing  the  rules  of  procedure 
for  the  European  legislatures  which  came  into  existence  in  the 
first  half  of  the  last  century.  It  is  to  be  found  in  its  English 
form,  under  the  title  of  an  Essay  on  Political  Tactics,  in 
the  second  volume  of  Bentham' s  collected  works. 

This  has  been,  perhaps,  too  long  a  digression  from  my  main 
theme.  Let  me  return  to  what  I  said  a  short  time  ago  about 
the  difficulty  of  reconciling  the  demand  for  accuracy,  pre- 
cision, and  consistency  in  the  language  of  laws  with  their 
liability  to  alteration  in  the  course  of  their  passage  through  a 
popularly  elected  legislative  assembly.  The  difficulty  is 
serious;  the  problem  has  never  been  solved,  perhaps  does 
not  admit  of  being  completely  solved.  And  I  often  think 
that  some  of  the  criticisms  passed  on  the  form  of  our  statute 


CHARACTERISTICS  OF  MODERN  LEGISLATION     187 

law,  especially  those  which  animadvert  upon  desultory  and 
fragmentary  legislation,  indicate  an  imperfect  appreciation 
of  the  difficulties  with  which  modern  legislators  have  to 
contend,  and  a  misconception  of  the  task  which  popular 
legislatures  have  to  perform. 

What  is  that  task  ?  If  I  had  to  describe  what  it  is  not,  I 
could  hardly  do  better  than  quote  some  remarks  attributed 
to  the  great  Napoleon.  I  have  been  unable  to  trace  the 
authority  for  attributing  to  him  the  precise  words  used,  but 
they  undoubtedly  express  his  real  opinion.  "No  one," 
Napoleon  is  reported  to  have  said,  "  can  have  greater  respect 
for  the  independence  of  the  legislative  power  than  I;  but 
legislation  does  not  mean  finance,  criticism  of  the  adminis- 
tration, or  ninety-nine  out  of  the  hundred  things  with  which 
in  England  the  Parliament  occupies  itself.  The  legislature 
should  legislate,  i.e.  construct  grand  laws  on  scientific  prin- 
ciples of  jurisprudence,  but  it  must  respect  the  independ- 
ence of  the  executive  as  it  desires  its  own  independence  to  be 
respected.  It  must  not  criticise  the  government,  and  as  its 
legislative  labours  are  essentially  of  a  scientific  character, 
there  can  be  no  reason  why  its  debates  should  be  reported." 

Now  that  is  not  our  conception,  nor  is  it  your  conception, 
of  the  functions  of  a  legislature.  Neither  in  your  country 
nor  in  ours  does  the  legislature  find  itself  called  upon  to 
construct  grand  laws  on  scientific  principles  of  jurisprudence. 
If  it  were  called  upon  to  do  so,  it  would  act  wisely  were  it  to 
follow  the  example  set  at  the  end  of  the  last  century  by  the 
German  legislature,  hand  over  the  task  of  preparing  and 
settling  such  laws  to  a  body  of  skilled  persons,  reserve  to  it- 
self full  powers  of  criticising  or  rejecting  their  work,  but  not 
attempt  to  perform  itself  work  for  which  it  is  not  fitted,  and 
which  it  was  never  expected  or  intended  to  perform. 


188  THE  MECHANICS  OF  LAW  MAKING 

I  will  go  further,  and  say  that  modern  legislatures  do  not 
concern  themselves  much  or  often  with  amending  the  general 
rules  or  principles  of  what  may  be  called  private  law,  as 
distinguished  from  public  or  administrative  law.  That  is 
certainly  true  in  the  case  of  the  Parliament  at  Westminster, 
and  it  is  probably  true  of  the  legislatures  in  your  country 
also.  Not  that  our  Parliament  has  ever  hesitated  to  inter- 
vene in  the  domain  of  private  law,  or  allowed  its  right  and 
power  to  do  so  to  be  questioned.  When  the  development  of 
common  law  rules  has  failed  to  keep  pace  with  changes  in 
social  or  economic  conditions,  when  a  too  servile  adherence 
to  precedents  has  forced  these  rules  into  a  wrong  groove,  our 
legislature  has  never  shrunk  from  stepping  in  and  bringing 
the  rules  into  conformity  with  the  national  will  and  national 
requirements.  But  such  interventions  have  been  compara- 
tively rare.  And  when  they  take  place,  the  tendency  of 
Parliament  has  always  been  to  leave  such  matters  very  much 
in  the  hands  of  professional  lawyers.  What  I  have  said  does 
not  apply  to  criminal  law.  Nor  does  it  apply  to  the  excep- 
tional cases  where  the  operation  of  a  rule  of  civil  law  is  of 
great  and  general  public  interest,  as  in  the  case  of  the  law  of 
marriage  and  divorce,  or  of  the  rules  which  regulate  the  posi- 
tion of  trade  unions  or  of  the  liability  of  employers  for 
injuries  to  their  workmen.  But  as  a  rule  the  Parliament  at 
Westminster  does  not  take  much  interest  in  what  I  have 
ventured  to  call  "  lawyers'  law."  And  the  same  thing  ap- 
pears to  be  true  of  Continental  legislatures.  For  instance, 
the  French  legislature  has,  as  I  have  pointed  out,  frequently 
amended  the  provisions  of  the  French  Civil  Code.  But 
I  learn  from  one  of  the  essays  in  the  centenary  volumes  on 
the  Code  Civil  to  which  I  have  previously  referred,  that  these 
amendments  have  rarely  evoked  much  interest  outside 


CHARACTERISTICS  OF  MODERN  LEGISLATION     189 

the  legal  profession  or  been  the  subject  of  much  discussion 
within  the  legislature. 

What  then  is  the  ordinary  task  of  a  modern  popular 
legislature?  It  is,  I  submit,  to  remove  discontent  and  to 
avert  revolution,  by  making  laws  which  adapt  the  political, 
administrative,  and  economic  arrangements  of  the  country 
to  the  requirements  of  the  times.  Its  success  in  so  doing  is 
the  test  by  which  it  should  be  tried. 

When  the  authors  of  books  on  jurisprudence  write  about 
law,  when  professional  lawyers  talk  about  law,  the  kind  of 
law  about  which  they  are  usually  thinking  is  that  which  is 
to  be  found  in  Justinian's  Institutes,  or  in  the  Napoleonic 
Codes,  or  in  the  new  Civil  Code  of  the  German  Empire,  that 
is  to  say,  the  legal  rules  which  relate  to  contracts  and  torts, 
to  property,  to  family  relations,  to  succession  and  inheri- 
tance, or  else  the  law  of  crimes  as  it  is  to  be  found  in  a  Penal 
Code.  They  would  include  also  the  law  of  procedure  or 
"  adjective  law,"  to  use  a  Benthamic  term,  in  accordance  with 
which  these  substantive  rules  of  law  are  administered  by  the 
courts.  These  branches  of  law  make  up  what  I  call  "  lawyers' 
law."  Now,  as  I  have  already  pointed  out,  no  legislature 
in  the  world  has  asserted  more  continuously,  more  trench- 
antly, or  more  effectively,  its  supremacy  over  every  branch 
of  the  law  than  the  British  Parliament.  It  has  indirectly 
altered  the  common  law  rules  of  contract,  of  tort,  of  prop- 
erty, of  marriage,  of  inheritance.  It  has  recast  the  law  of 
crimes  and  criminal  procedure,  not  artistically  or  completely 
—  indeed,  very  much  the  reverse  —  but  sufficiently  to  give 
effect  in  substance  to  almost  all  the  reforms  which  Bentham 
was  advocating  a  century  ago.  It  has  remodelled  the  con- 
stitution as  well  as  the  procedure  of  the  courts.  It  has  never 
hesitated  to  do  these  things.  But  at  the  same  time  it  has 


190  THE  MECHANICS  OF  LAW  MAKING 

never  considered  the  doing  of  them  to  be  its  main  function. 
The  bulk  of  its  members  are  not  really  interested  in  technical 
questions  of  law,  and  would  always  prefer  to  let  the  lawyers 
develop  their  rules  and  procedure  in  their  own  way.  The 
substantial  business  of  Parliament  as  a  legislature  is  to  keep 
the  machinery  of  the  State  in  working  order.  And  the  laws 
which  are  required  for  this  purpose  belong  to  the  domain, 
not  of  private  or  of  criminal  law,  but  of  what  is  called  on  the 
Continent  administrative  law.  If  you  were  to  take  up  a 
file  of  our  public  bills  for  a  session,  or  an  annual  volume  of 
our  public  general  statutes,  you  would  find  that  it  confirms 
this  statement.  There  is  usually  a  sprinkling  of  measures 
or  proposed  measures  which,  to  use  the  language  of  legal 
journals,  "  are  of  special  interest  to  the  legal  profession," 
but  the  proportion  which  these  bear  to  the  whole  mass  of 
Acts  and  bills  is  extremely  small.  The  bulk  of  the  statute 
book  of  each  year  usually  consists  of  administrative  regula- 
tions, relating  to  matters  which  lie  outside  the  ordinary 
reading  and  practice  of  the  barrister.  This  has  probably 
always  been  a  characteristic  of  English  legislation,  but  it 
has  been  so  in  a  marked  degree  during  the  period  which 
has  elapsed  since  the  Reform  Act  of  1832. 

The  world  in  which  we  live  is  constantly  and  rapidly  mov- 
ing and  changing.  It  is  moving  and  changing  under  the 
operation  of  physical  forces  such  as  petrol  and  electricity, 
and,  still  more,  of  the  gigantic  force  of  accumulated  and 
concentrated  wealth.  And,  not  only  in  the  old  European 
world,  but,  as  your  Ambassador  to  England  pointed  out  in 
the  extremely  interesting  address  which  he  delivered  in 
London  last  Independence  Day,  in  your  own  world  also, 
it  is  moving  in  the  direction  of  conferring  greater  powers, 
and  imposing  greater  responsibilities,  on  the  executive 


CHARACTERISTICS  OF  MODERN  LEGISLATION    191 

government.  I  do  not  discuss  the  question  whether,  and 
how  far,  this  tendency  is  wise  or  salutary.  I  only  bid  you 
remark  that  it  exists.  And  so  long  as  these  movements  and 
changes  take  place,  so  long  as  this  tendency  exists,  there 
will  be  a  demand,  and  an  insistent  and  imperative  demand, 
for  fresh  legislation.  It  will  often,  it  will  inevitably,  be  met 
by  protests  against  overlegislation.  These  protests  are 
often  justified.  Much  modern  legislation  is  crude,  hasty, 
unwise.  Much  of  it  proceeds  from  an  imperfect  conception 
of  what  is  needed  and  what  is  practicable.  But  protests  of 
this  kind  too  often  come  from  those  who  are  fortunate 
enough,  if  fortunate  is  the  right  word,  to  find  the  world  as 
it  is  all  that  it  should  be  in  so  far  as  they  themselves  are 
concerned,  and  therefore  desire  no  change  for  themselves, 
and  do  not  realise  the  need  of  change  for  others.  There  are 
such  people,  who  can  honestly  and  sincerely  say,  "  Rest  and 
be  thankful."  But  unless  I  am  much  mistaken,  "  Rest  and 
be  thankful"  is  not  the  normal  attitude  of  mind  of  the 
American  citizen,  of  the  electors  who  constitute  the  driving 
force  of  American  legislatures.  They  recognise  the  changes 
which  are  taking  place  in  the  world.  They  rejoice  in  them. 
They  like  to  know  and  feel  that  the  world  is  moving  on,  and 
that  they  are  helping  to  move  it.  And  their  representatives 
are  hard-headed,  practical  business  men  like  themselves. 
They  are  not,  for  the  most  part,  scientific  lawyers,  and  they 
care  little  —  far  too  little  —  about  the  form  of  their  pro- 
posals, provided  they  get  substantially  what  they  want. 
To  tell  such  men  that  they  must  be  content  with  laws  and 
institutions  that  satisfied  their  ancestors  is  like  telling  a 
manufacturer  that  he  must  be  content  with  machinery 
which  ought  to  have  been  scrapped  long  ago.  It  may  be 
that  they  are  in  too  great  a  hurry  to  scrap.  But  scrap 


192  THE  MECHANICS  OF  LAW  MAKING 

they  must,  unless  they  are  content  to  fall  behind  the 
times. 

Now  legislation  conducted  with  such  objects,  under  such 
conditions,  and  by  such  persons,  must  necessarily  be  open 
to  the  charge  of  being  desultory  and  fragmentary.  Frag- 
mentary, because,  if  you  wish  to  add  to  your  house  or  to 
repair  it,  you  do  not,  as  a  rule,  pull  it  down  and  build  it 
afresh.  No  more  would  you  if  you  discovered  a  defect  in 
one  of  your  laws,  proceed,  as  a  rule,  by  way  of  repeal  and 
re-enactment.  You  would  probably  try  to  pass  an  amend- 
ing Act.  Moreover,  legislation  of  the  kind  required  in 
modern  States  often  is,  and  often  ought  to  be,  tentative  and 
experimental.  You  try  your  experiment  on  a  modest  or 
limited  scale  at  first,  and  extend  it  afterwards  if  it  proves 
successful.  Or  you  introduce  a  new  scheme,  knowing  that 
you  cannot  tell  exactly  how  it  will  work,  or  what  are  its 
defects,  until  it  has  been  brought  into  operation.  If  it 
fails  to  work  satisfactorily,  you  can  and  do  amend  it.  Thus 
it  comes  to  pass  that  the  great  majority  of  modern  statutes 
are  amending  or  extending  Acts.  And  these  may  be  piled 
upon  one  another  until  they  become  a  huge  amorphous 
mass. 

We  must  deal  with  things  as  they  are,  remember  that  we 
are  not  in  a  republic  of  Plato,  but  in  the  republic  of  the 
United  States,  and  consider  what  practical  methods  can  be 
applied  for  diminishing  the  imperfections,  the  necessary  im- 
perfections, of  modern  statute  law. 

Two  of  these  methods  I  have  already  indicated.  You  can 
and  should  do  what  is  possible  to  improve  the  form  of  your 
bills  by  training  up  schools  of  draftsmen,  and  by  availing 
yourselves  of  expert  assistance  in  the  preparation  of  your 
laws.  You  can,  and  you  should,  keep  a  watchful  eye  on  the 


CHARACTERISTICS  OF  MODERN  LEGISLATION    193 

condition  of  your  statute  books,  and,  by  applying  steadily 
the  processes  of  revision  and  consolidation,  make  their 
contents  more  intelligible  to  those  who  have  to  use  them  and 
to  be  bound  by  their  provisions. 

What  can  be  done  by  improving  the  methods  of  procedure 
for  the  discussion,  amendment,  and  revision  of  legislative 
proposals  after  they  have  been  introduced  into  the  legisla- 
ture? That  is  a  question  which  is  always  being  asked  at 
Westminster  and  to  which  no  satisfactory  answer  has  yet 
been  found.  The  problem  of  modern  legislatures  is  to  recon- 
cile the  demand  for  full  and  free  discussion  with  the  need  of 
getting  business  through.  If  infinite  time  were  at  the  dis- 
posal of  the  legislature,  the  problem  might  be  solved  —  in 
the  course  of  infinite  time.  But  legislative  time  is  limited, 
legislative  business  is  heavy  and  tends  to  increase,  and  in 
England  the  longest  session  —  and  our  recent  sessions  have 
been  oppressively  long  —  does  not  nearly  suffice  for  dispos- 
ing of  the  business  set  down  for  consideration.  Hence  the 
resort  to  devices  for  expediting  business  which  were  not 
needed  in  the  leisurely  days  of  the  eighteenth  century,  de- 
vices such  as  those  which  we  know  among  ourselves  as  the 
closure  and  the  guillotine,  devices  the  use  of  which  every- 
one criticises  and  regrets,  but  which  everyone  admits  to  be 
necessary. 

Last  summer  the  House  of  Commons  appointed  a  select 
committee  to  consider  its  rules  of  procedure  and  to  suggest 
amendments.  There  have  been  a  great  many  select  com- 
mittees on  this  subject  during  the  last  eighty  years,  and  you 
will  find  a  good  account  of  them,  of  the  suggestions  which 
they  have  made,  and  of  the  results  of  those  suggestions,  in 
Professor  Redlich's  historical  account  of  the  procedure  of 
the  House  of  Commons,  a  book  which  has  been  translated 
o 


194  THE  MECHANICS  OF  LAW  MAKING 

into  English.  So  this  last  committee  had  many  predeces- 
sors. It  had  not  proceeded  very  far  with  its  labours  before 
the  end  of  the  session  but  it  will  doubtless  be  reappointed, 
and  its  chairman  has  expressed  a  desire  for  information 
about  the  procedure  of  other  legislative  bodies.  Any  hints, 
suggestions,  or  information  bearing  on  the  subject,  would,  I 
feel  sure,  be  gratefully  received. 

Of  all  comparisons  between  legislative  procedure  hi  dif- 
ferent countries,  the  most  instructive  probably  for  English- 
men is  that  between  the  procedure  of  Parliament  and  the  pro- 
cedure of  legislatures  in  the  United  States,  and  especially  of 
Congress,  because  it  shows  to  Englishmen  how  a  people  start- 
ing with  the  same  habits,  traditions,  and  modes  of  thought 
as  their  own,  may,  by  making  a  cardinal  point  of  a  different 
constitutional  principle,  the  severance  of  executive  and  legis- 
lative authority,  arrive  at  curiously  different  results.  On 
this  difference,  a  difference  based  on  a  principle  of  your  con- 
stitution, I  touched  at  the  outset  of  my  lectures.  The 
chief  point  of  resemblance  between  English  and  American 
legislation,  as  compared  with  legislation  on  the  continent  of 
Europe,  is  the  desire  in  both  America  and  in  England  to 
be  governed  by  fixed  written  rules  and  to  leave  as  little 
scope  as  possible  to  official  discretion,  and  the  consequent 
minuteness  of  detail  into  which  legislation  in  both  countries 
descends. 

As  to  differences  of  legislative  procedure,  the  chief  dif- 
ference that  strikes  an  English  observer,  —  apart  from  the 
absence  of  control  by  the  executive  over  the  passage  of  bills 
through  the  legislature,  —  is  that  much  more  of  your  legis- 
lative work  is  done  by  and  in  committees,  and  much  less  in 
the  House  itself,  and  that  the  committees  of  Congress  which 
deal  with  bills  are  standing  committees  appointed  for  the 


CHARACTERISTICS  OF  MODERN  LEGISLATION     195 

consideration  of  particular  subjects.  In  Congress,  I  under- 
stand, the  first  and  second  reading  of  a  bill  are  mere  formali- 
ties ;  the  discussions  in  committee  are  private,  though  there 
may  be  public  hearings  before  the  committee,  and  when  a 
bill  emerges  from  a  committee,  if  it  ever  does  emerge,  the 
amount  of  time  allowed  for  the  discussion  in  the  House  itself 
is  confined  within  limits  far  narrower  than  those  allowed  by 
the  most  ruthless  application  of  the  guillotine  at  Westminster. 
Our  own  legislative  procedure  I  have  already  described 
and  I  need  not  repeat  the  description  here. 

In  judging  English  Acts  of  Parliament  it  must  be  remem- 
bered that  the  defects  with  which  they  are  chargeable  are  in 
great  measure  directly  due  to  the  principles  of  the  constitu- 
tion under  which  they  are  framed.  In  the  first  place,  an 
ordinary  Act  of  Parliament  is  essentially  a  creature  of  com- 
promise. In  point  of  form,  it  is  a  compromise  between  the 
terms  of  art  demanded  by  the  lawyer  and  the  popular  lan- 
guage required  by  the  layman.  If  the  lawyer  finds  such 
a  term  as  "land"  loose  and  slipshod,  to  the  layman  "heredita- 
ment" is  pedantic  and  unintelligible.  The  result  is  that 
the  layman  usually  finds  his  satisfaction  in  the  text,  and  the 
lawyer  has  to  be  consoled  with  a  definition.  In  point  of 
arrangement,  an  Act  is  a  compromise  between  the  order  most 
convenient  for  debating  a  bill  and  the  order  most  convenient 
for  administering  an  Act.  In  point  of  substance,  a  bill  as 
it  enters  Parliament  may  be,  and  as  it  emerges  frequently  is, 
a  compromise  between  divergent  views.  It  is  the  work  of 
many  minds,  and  the  product  of  many  hands.  Now  compro- 
mise and  co-operation  are  admirable  things  in  politics,  but 
they  do  not  always  tend  to  clearness  or  accuracy  of  style, 
logical  arrangement,  or  consistency,  in  literary  composition. 

It  is  a  marvel  that  our  English  Acts  are  as  decent  in  form 


196  THE  MECHANICS  OF  LAW  MAKING 

as  they  are,  considering  the  conditions  under  which  they 
are  produced.  At  first  sight  nothing  would  seem  more  pre- 
posterous than  to  submit  a  complicated  draft  for  criticism 
and  correction  to  a  miscellaneous  assembly  of  670  persons. 
But  if  the  member  in  charge  of  a  bill  is  a  minister  with  a 
compact  and  strong  following  at  his  back,  and  if  he  has  the 
qualities  which  command  the  confidence  and  respect  of  the 
House,  he  can  retain  control  over  both  the  form  and  the 
substance  of  his  bill  through  all  the  vicissitudes  of  a  long 
discussion  in  committee.  It  is  true  that  the  qualities  required 
for  the  successful  steering  of  a  complicated  and  controversial 
bill  through  committee  are  qualities  of  a  very  high  order. 
They  include  tact,  readiness,  resourcefulness,  firmness,  and, 
above  all,  patience  and  good  temper.  The  slightest  appear- 
ance of  dictation,  the  slightest  loss  of  temper,  will  often  set 
the  House  aflame.  But  if  the  minister  can  be  conciliatory 
without  "wobbling,"  can  distinguish  between  amendments 
which  are  fatal  to  his  scheme  and  those  which  are  not,  can 
by  a  happy  and  timely  suggestion  indicate  the  way  out  of  a 
confusing  discussion  and  can  suppress  his  own  impatience 
until  it  is  shared  by  the  committee,  he  can,  without  going 
to  a  division,  often  persuade  his  critics  either  to  withdraw, 
or  to  modify,  or  to  postpone  their  amendments,  or,  at  the 
worst,  make  his  assent  to  their  acceptance  subject  to  further 
consideration  at  a  later  stage  of  the  bill.  Qualities  of  this 
kind  are  not  rare  among  English  statesmen,  and  are  devel- 
oped by  parliamentary  training.  Those  who  have  been  in 
the  habit  of  attending  legislative  discussions,  whether  in 
committee  of  the  whole  House  or  in  any  of  the  grand  com- 
mittees, cannot  fail  to  have  been  struck  by  their  display  and 
to  have  been  also  impressed  by  the  good  sense,  good  temper, 
and  readiness  to  adopt  compromises  and  accept  reasonable 


CHARACTERISTICS  OF  MODERN  LEGISLATION     197 

assurances  which  characterise  a  committee,  except  when  it 
has  got  "out  of  hand." 

Our  legislative  procedure  in  England,  and  doubtless  yours 
in  the  United  States  also,  is  far,  very  far,  from  being  ideal. 
But  in  seeking  for  lines  of  improvement  we  must  always,  we 
in  England,  you  in  America,  bear  in  mind  the  principles  of 
our  respective  constitutions,  and  the  conditions  under  which 
our  legislatures  act.  An  obvious  criticism  on  our  English 
legislative  procedure,  and  one  which  is  often  made  by  mem- 
bers of  the  legal  profession,  is  that  the  defects  of  our  laws  are 
due  to  the  clumsy  and  ignorant  interference  of  Parliament. 
"Leave  the  drafting  of  laws  to  experts,  and  the  grumbles  of 
the  legal  profession  and  of  the  public  would  cease."  And  the 
authority  of  John  Stuart  Mill  is  sometimes  cited  in  support 
of  this  proposition.  He,  as  those  who  have  read  his  work  on 
Representative  Government  may  remember,  would  have 
handed  over  the  framing  of  laws  to  a  standing  commission 
of  experts,  acting  under  general  parliamentary  instructions. 
I  hardly  think  that  this  suggestion  would  commend  itself 
as  practicable  either  to  you  in  America  or  to  us  in  England. 
No  doubt  it  is  very  desirable  that  when  a  bill  has  been  through 
the  rough  and  tumble  of  discussion  and  amendment  in  com- 
mittee, its  form  should  undergo  examination  by  an  expert. 
And  an  English  government  bill  is  so  examined,  so  far  as 
time  permits,  by  the  government  draftsman,  who  suggests 
amendments  to  be  made  either  at  the  report  stage  in  the 
House  of  Commons,  if  the  bill  is  initiated  there,  or,  still 
later,  when  the  bill  passes  through  the  House  of  Lords. 
So  far  as  my  experience  goes,  the  great  majority  of  amend- 
ments made  in  public  bills  in  the  second  chamber  are  sug- 
gested by  the  promoters  of  the  bill,  either  for  the  purpose  of 
removing  formal  defects  or  for  the  purpose  of  conciliating 


198  THE  MECHANICS  OF  LAW  MAKING 

opponents.  With  reference  to  such  amendments  it  would 
perhaps  be  more  accurate  to  say  that  our  House  of  Lords  is 
used,  than  that  it  acts,  as  a  revising  body. 

As  to  the  lines  on  which  reform  of  our  parliamentary  pro- 
cedure is  likely  to  be  conducted,  or  ought,  in  my  opinion,  to  be 
conducted,  you  will  not  expect  me  to  commit  myself.  There 
are,  however,  two  things  which  I  may  venture  to  say.  I 
think  that  the  modern  tendency  to  delegate  the  power  of 
making  rules  and  orders  on  matters  of  minor  importance 
requires  to  be  carefully  watched,  but  is  a  tendency  in  the 
right  direction.  The  more  a  legislature  confines  itself  to 
the  determination  of  principles  with  which  it  is  fitted  to  deal, 
and  the  less  it  extends  its  activities  to  the  elaboration  of 
details  with  which  it  is  not  fitted  to  deal,  the  more  it  is  likely 
to  retain  effective  control  over  legislation.  I  think  also  that 
the  language  and  detailed  provisions  of  a  bill  can  be  better 
settled  by  a  committee  than  by  the  whole  body  of  the  legis- 
lature, and  that  the  smaller  a  committee,  the  better  it  is  qual- 
ified to  do  this  work.  And  if  any  member  of  Parliament 
should  object,  as  members  of  Parliament  sometimes  do 
object,  that  the  delegation  of  legislative  work  to  committees 
means  a  limitation  of  his  powers  and  duties  as  a  legislator, 
I  should  be  disposed  to  remind  him  that  there  are  limits  to 
human  intelligence,  even  to  the  intelligence  of  a  legislator, 
and  that  the  legislator  who  thinks  himself  not  only  entitled 
but  bound  to  put  his  finger  into  every  legislative  pie  and  to 
scrutinise  every  measure  submitted  for  the  approval  of  the 
body  to  which  he  belongs,  may  possibly  be  placing  an  exag- 
gerated estimate  both  on  his  intelligence  and  on  his  respon- 
sibilities. 

I  must  bring  my  lectures  to  a  conclusion.  When  I  ac- 
cepted your  president's  flattering  request  to  deliver  them, 


CHARACTERISTICS  OF  MODERN  LEGISLATION     199 

I  made  up  my  mind  that  there  was  one  thing  which  I  would 
not  attempt  to  do,  which  I  would  avoid  any  appearance  of 
doing.  I  would  not  lecture  you  on  the  way  in  which  you 
ought  to  make  your  laws.  To  attempt  such  a  thing  would 
have  been  an  impertinence. 

But  there  was  one  thing  which  I  thought  I  might  reason- 
ably attempt ;  that  was  to  give  you  some  of  the  results  of 
my  own  experience  as  a  draftsman  of  legislative  measures, 
and  leave  you  to  draw  your  own  conclusions.  That  is 
what  I  have  attempted  to  do  in,  I  fear,  a  very  incomplete 
and  fragmentary  manner,  so  that  my  lectures  might  not  un- 
fairly be  described  as  desultory  remarks  on  legislation. 

But  there  is  one  point  which  I  desire  to  impress  upon  you, 
and  that  is  the  limitation  of  my  subject.  It  was  to  indi- 
cate that  limitation  as  clearly  as  I  could  that  I  proposed  to 
entitle  the  subject-matter  of  my  discourses  "The  Mechanics 
of  Law  Making."  What  I  have  been  talking  about  is  mere 
machinery.  I  have  confined  myself  to  machinery,  and  have 
not  attempted  to  examine  or  formulate  the  principles  of 
law  or  the  principles  of  legislation. 

Now  machinery  is  a  very  good  thing ;  good  machinery  is 
an  excellent  thing.  But  good  machinery  will  not  produce 
good  laws,  any  more  than  good  machinery  will  produce  a 
good  book.  Legislation  is  part  of  statesmanship,  one  of  the 
most  important  parts.  The  man  who  has  the  insight  to 
perceive  the  needs  of  his  country  and  of  his  time,  who  is  so 
imbued  with  the  principles  of  statesmanship  as  to  know 
how  far  those  needs  ought  to  be  met  and  can  be  met  by  legis- 
lation, who  has  the  foresight  and  constructive  imagination 
required  to  devise  an  appropriate  remedy  for  the  evil  of 
which  he  has  become  aware,  who  possesses  those  qualities 
of  industry,  patience,  tact,  knowledge  of  human  nature, 


200  THE  MECHANICS  OF  LAW  MAKING 

oratory,  persuasiveness,  which  are  needed  for  the  successful 
steering  of  a  legislative  measure  through  a  popular  assembly, 
—  that  man  is  a  great  statesman.  Such  men  are  rare,  and 
when  such  men  are  not  found,  good  legislation  is  difficult,  if 
not  impossible,  to  accomplish.  Unless  a  country  has  such 
statesmen,  and  unless  it  has  also  a  sound  public  opinion  to 
direct  and  contend  the  action  of  its  legislatures,  it  will  not 
have  good  laws. 

A  great  legislator  is  a  great  artist,  in  the  wide  sense  that 
a  great  architect  or  a  great  engineer  is  a  great  artist, 
a  man  of  great  constructive  imagination.  But  a  great 
artist  does  not  disdain,  cannot  afford  to  disdain,  the  mastery 
of  his  rules  of  technique.  He  knows  the  value  of  his  tools, 
he  knows  how  much  he  is  dependent  on  the  co-operation  of 
skilled  and  trained  assistants.  And  it  is  to  some  of  these 
rules  of  technique,  to  some  parts  of  the  machinery  which  has 
been  and  is  employed  by  those  who  are  engaged  in  the 
great  and  difficult  work  of  legislation,  to  the  training  and 
experience  which  are  required  for  those  who  are  to  assist  in 
this  work,  that  I  have  endeavoured  to  direct  your  attention, 
and  I  hope  that  I  have  not  wasted  your  time. 


INDEX 


Act  of  Parliament,  Framer  of,  109- 
11.  See  also  Draftsman,  Parlia- 
mentary counsel 

Act  of  Parliament,  Two  points  of 
view  for  bill  for,  111 ;  should  be 
intelligible  by  the  lay  folk,  117-18 

Acts,  Distinction  between  classes  of, 
28 

Acts  of  Parliament,  Early,  how 
framed,  56-62 ;  since  1832,  62-69  ; 
Bentham  on  breaking  into  parts, 
98,  116;  language  of,  not  uniform, 
123-24 

Acts  of  Parliament  relating  to  India, 
Consolidation  of,  38 

Administrative  legislation,  139-40, 
145.  See  also  Legislation,  Sub- 
ordinate or  delegated 

Amending  Acts,  127-30 

Army  Act  of  1881,  Lord  Thring  on 
work  done  on  the,  107-8 

Arrangement  of  a  bill,  115-16 

Austin,  John,  member  of  Brougham's 
Commission  of  1833,  29  ;  on  draft- 
ing statutes,  98-99 

Bacon,  Sir  Francis,  Proposition  of, 
touching  the  compiling  and  amend- 
ment of  the  laws,  26-27 

Bacon,  Sir  Nicholas,  Scheme  of, 
for  reducing  and  printing  the 
statutes,  25 

Belgium,  Civil  Code  in,  153 

Bentham,  Jeremy,  Influence  of,  in 
the  reformed  parliament,  29,  98 ; 
on  cost  of  edition  of  Revised 
Statutes,  35;  "Nomography"  of, 
92-99 ;  on  imperfections  to  be 
avoided  in  drafting,  94-95 ;  on 
sentences,  97-98 ;  on  utility  of 
definitions,  118;  on  codification, 
151-53. 


Bethune,  Drinkwater,  prepared  bills, 
63 

Bill,  Power  of  Commons  and  Speaker 
over  a,  6-7,  69 ;  no  question  of 
invalidity  of  a  passed,  on  ground 
of  misdescription,  7  ;  amendments 
to  a,  76 ;  committee  stage,  80-82 ; 
report  stage,  82-83;  third  read- 
ing, 83  ;  Lord  Thring  on  criticisms 
on  a,  106 ;  style  and  language  of 
a,  109-12,  117-18;  subject-matter 
to  be  mastered,  18,  113-15;  ar- 
rangement, 115-16 ;  Interpreta- 
tion Act  of  1889,  118-21 

Bills,  parliamentary,  Earliest  history 
of,  involved  in  obscurity,  56 ; 
machinery  for  drafting  and  pre- 
paring, 60-69 

Blue  books,  72 

Board  for  the  revision  of  the  statute 
law,  see  Cranworth's,  Lord,  Board 
etc. 

Brodie,  Mr.,  conveyancer,  drafted 
bills,  60 

Brougham,  Lord,  Royal  commission 
of  1833  of,  on  the  statute  book, 
presented  seven  reports,  29 

Bryce,  James,  member  of  Statute 
Law  Committee,  42 

Burnet,  Gilbert,  bishop,  on  reforma- 
tion of  statutes  under  Edward  VI, 
25 

Butler,  Gawin,  Complaint  of,  on 
waste  done  to  his  land,  57-58 

Cabinet,  English,  Members  of,  have 
seats  in  Parliament,  9 ;  draft  of 
a  bill  often  submitted  to  a  com- 
mittee of  the,  76 

Cabinet  government  in  England,  10 
Cabinet  system  of  government  built 
up,  28 


201 


202 


INDEX 


Cairns,  Lord,  appointed  Statute 
Law  Committee,  42 

Cambaceres,  on  law  and  reglement, 
141 

Cardwell,  Edward,  Scheme  of,  for 
revising  the  military  law,  107-8 

Chancellor,  Lord,  and  the  Statute 
Law  Committee,  42,  43 

Chili,  Civil  Code  in,  153 

Clauses  Consolidation  Acts  of  1845, 
a  conspicuous  case  of  referential 
legislation,  130-32 

Code  Civil,  The  French,  taken  as  a 
model,  153  ;  centenary  of,  155  ;  ori- 
gin and  history  of,  156-63;  the 
First  Revolution,  156-60 ;  the  Na- 
tional Convention,  160-61;  Na- 
poleon and  the,  161-63 ;  verdict 
of  history  on,  174-75 ;  has  not 
impeded  legal  changes,  175-78; 
nor  the  development  of  jurispru- 
dence, 178 ;  nor  been  detrimental 
to  legal  literature,  178-80 

Codes  Napoleon,  153 ;  immediate 
predecessors  of  the,  157 

CODIFICATION,  150-80 :  Objects, 
difficulties  and  advantages,  150-51 ; 
Bentham  on,  151-53 ;  progress  of, 
153-55 ;  origin  and  history  of  the 
French  Civil  Code,  155-63;  the 
First  Revolution,  156-60 ;  the  Na- 
tional Convention,  160-61 ;  Na- 
poleon, 161-63  ;  the  German  Civil 
Code,  163-65;  the  Indian  Codes, 
165-68 ;  the  Indian  Succession 
Act  and  the  Law  of  Moses,  168-72 ; 
European  codes  the  work  of  many 
generations,  172 ;  causes  of  Eng- 
lish indifference  to,  172-74;  ver- 
dict of  history  on  the  Code  Civil, 
174-75;  has  not  impeded  legal 
changes,  175-78 ;  development  of 
jurisprudence,  178 ;  nor  been 
detrimental  to  legal  literature, 
178-80 

Codification  of  statutes,  30-31; 
and  consolidation,  defined,  36-37 ; 
questions  concerning,  49-50 

Commercial  law  systematised,  28 

Commission  of  1610  on  reforming  the 
statutes,  26 

Commission     on     Public     Records, 


First,  28;  published  Statutes  of 
the  Realm,  28-29 

Commissions  to  reform  the  statutes, 
Work  of,  29-30 

Committee  of  the  whole  House,  80- 
82 

Committees  of  1796,  Reports  of,  on 
the  statute  book,  28 

Committees,  Standing,  on  bills,  of 
the  House  of  Commons,  80 

Commonwealth,  Committees  for  re- 
vising statutes  under  the,  27 

Conferences  for  preparation  of  bills, 
74-76 

Congress,  Powers  of,  not  sovereign, 
3,5 

Consolidation  bills,  Difficulties  in 
passing,  39-40 ;  recent,  enacted, 
41 ;  difficulties  in  framing,  123-28 

Consolidation  of  Statute  Law,  30; 
and  codification  defined,  36-37; 
advantages  of,  37 ;  difficulties  in- 
volved in,  37-41 ;  in  the  Crown 
colonies,  41 ;  agencies  for,  42-43 ; 
questions  concerning,  49-50 

Constitution  of  United  States  limits 
powers  of  legislatures,  4 

Conveyancers,  Statutes  drawn  by, 
60,  109 

Coode,  Mr.,  on  legal  expression,  102 

Cooper,  Ashley,  member  of  a  statute 
revision  committee,  27 

Co-operation,  Need  of,  in  study  of 
comparative  legislation,  54 

Coulson,  Walter,  prepared  parlia- 
mentary bills,  63 

Council,  King's,  Medieval  parlia- 
ment an  expansion  of  the,  56 

Counsel  to  Speaker  of  House  of  Com- 
mons, has  ^supervision  of  private 
bills,  135 

Counsel  to  the  Lord  Chairman  of 
Committees  in  House  of  Lords, 
has  supervision  of  private  Bills, 
135 

Courts,  English,  and  English  Acts,  4 

Courts,  United  States,  determine 
validity  of  laws,  5 

Cranworth's,  Lord,  Board  for  the 
revision  of  the  statute  law,  29 ; 
superseded  by  Statute  Law  Com- 
mission of  1854,  29-30 


INDEX 


203 


Criminal  law,  Statutory,  improved, 
29,  41 

Definitions,  Brougham's  Act  of  1850 
on,  118;  value  of  the  Interpreta- 
tion Act  of  1889,  118-19 

Department,  Duties  of  permanent 
head  of,  in  preparation  of  bills, 
70,  74-75 

Departmental  committee,  Functions 
and  powers  of  a,  71 

Desultory  legislation,  Sir  F.  Pollock 
on,  13-15 

Digest  of  common  and  statute  law 
proposed  by  Lord  Westbury,  33 

Disraeli,  Benjamin,  Lord  Thring  on, 
and  the  Reform  Bill  of  1867,  104-5 

Draftsman,  Government,  concerned 
chiefly  with  government  bills,  9, 
77 ;  qualifications  for  a,  16-19 ; 
experiences  of  a,  19-23 ;  useful 
work  done  by,  40;  occupied  by 
current  legislation,  41,  85  ;  member 
of  Statute  Law  Committee,  43 ; 
preliminary  labours  of  a,  70 ;  sources 
of  information  for,  70-73 ;  duties 
of,  at  conferences,  74-76  ;  work  of, 
during  passage  of  bills,  76-77; 
experience  of  a  committee  stage, 
83-84 ;  other  duties  of,  85-86 ;  ad- 
vantages of  having  a,  87-89 ;  a 
committee  to  perform  work  of, 
89-90;  should  be  trained,  192-93 

DRAFTSMAN,  GOVERNMENT,  DUTIES 
OF  A,  70-90 :  Preliminary  labours, 
70 ;  sources  of  information,  70-74  ; 
royal  commissions'  and  parliamen- 
tary committees'  reports,  70-72, 
80-83;  blue  books,  72;  depart- 
ment libraries,  73 ;  attendance  at 
conferences  during  the  prepara- 
tion of  bills,  74-76;  during  pas- 
sage of  bills,  76-77 ;  private  mem- 
bers' bills  referred  to,  by  the  Treas- 
ury, 84-85 ;  main  duties,  on  cur- 
rent parliamentary  legislation,  85 ; 
other  classes  of  duties,  85-87 ;  re- 
sults of  work  of  draftsmen,  87-88  ; 
not  suitable  to  conditions  in  United 
States,  89-90.  See  also  Parlia- 
mentary Counsel  to  the  Treasury. 

DRAFTSMEN,  RULES  FOR  THE  GUID- 


ANCE OF,  91-122 :  Books  on  inter- 
pretation of  statutes,  91 ;  Ben- 
tham's  Nomography,  92-98 ;  John 
Austin  on  drafting,  98-99;  Lord 
Thring's  Practical  Legislation,  99- 
106 ;  Thring  on  Gladstone,  103-4  ; 
on  Disraeli,  104-5 ;  on  the  Army 
Act  of  1881,  107-8 ;  style  and  lan- 
guage, 109-12;  mastery  of  the 
subject-matter,  113-15;  arrange- 
ment of  a  bill,  115-17  ;  language  of 
a  bill,  117-18;  the  Interpretation 
Act  of  1889,  118-19  ;  general  rules 
of  interpretation,  119-21 ;  cau- 
tions, 121-22 

Dumont,  Etienne,  and  his  La  tactique 
des  assemblies  legislatives,  184-86 

Economy  attained  by  establishment 

of   parliamentary   counsel's   office, 

87-88 
Edward  I  made  Statute  of  Waste,  57- 

58 
Edward     VI,     on     reformation     of 

statutes,  25 
England,  Changes  in,  in  eighteenth 

century,  28 
English  Partnership  Act  of  1865,  14- 

15 
English     Society     of     Comparative 

Legislation,    44-55;     Journals    of, 

source  of  information  on   current 

legislation,  73 

Executive,  Distinction  between  func- 
tions of,  and  of  legislature,  9,  10, 

11-12 
Experts,  Government  by,  or  with  aid 

of,  76 
Expurgation  of  statutes,  30,  32-34; 

agencies  for,  42-43 

Family    government,     Relations    of 

Nomography  to,  92-93 
Field,  David    Dudley,   Work   of,  on 

codes,  102 
Finance   Act    of    1894,    assailed    by 

amendments,  67 
Finance  Act  of   1909-1910,   assailed 

by  amendments,  67 
Fines  and  Recoveries  Act,  60 
Fisher,    Mr.,    on    the    French    Civil 

Code,  174 


204 


INDEX 


Forgery  Act  of  1913,  41 

France,  Legislation  by  delegation  in, 
140 ;  decrees,  reglements,  and  simi- 
lar executive  orders  in,  140-41 

Franchises,  dealt  with  in  private 
bills,  134 

French  constitution  of  the  Year  VIII, 
used  by  Napoleon  and  Cambace'res, 
140-41 

French  law  in  1789,  156;  unity  of, 
the  dream  of  French  Kings,  156- 
57 ;  influence  of  Pothier  on,  157  ; 
work  of  amending,  158 ;  principal 
changes  in,  159-60;  work  of 
the  National  Convention,  160-61 ; 
Napoleon's  interest  in,  161-62 ; 
familiarity  of  Frenchmen  with, 
174-75;  works  of  M.  Viollet  and 
M.  Esmein  on  history  of,  180 

Froude  on  Henry  VIII  as  draftsman, 
58 

Germany,  Gesetz  and  Verordnung  in, 
140 ;  Civil  Code  in,  153 ;  its  origin 
and  history,  163-65 

Gilbert's  Act,  on  poor  law  legisla- 
tion, 61 

Gladstone,  W.  E.,  Lord  Thring  on 
drafting  the  Irish  Land  Act  of 
1870  for,  103-4 

Goschen,  George  J.,  on  financial 
bills,  66 

Government,  Share  of  the  executive, 
in  work  of  legislation,  increased, 
61-62 

Government  bills,  how  introduced,  9  ; 
alterations  in  machinery  for  draft- 
ing and  preparing,  62-64 ;  estab- 
lishment of  the  parliamentary 
counsel,  64-65.  See  also  Public 
bills 

Government  draftsman,  see  Drafts- 
man, Government. 

Governor,  Powers  of,  over  legislation, 
10 

Grievances,  12 ;  petitions  for  redress 
of,  57 

Guizot,  F.  P.  G.,  on  Dumont's  Tactics 
of  Political  Assemblies,  185-86 

Hale,  Sir  Matthew,  member  of  a 
statute  revision  committee,  27 


Hardwicke,  Lord,  on  drafting  of  bills 
by  judges,  59 

Harrison,  William,  parliamentary 
counsel,  60-61,  62 

Henry  VIII  as  draftsman,  58 ;  bent 
Parliament  to  his  will,  143 ; 
had  the  Statute  of  Proclamations 
passed,  143-44 

Herschell,  Lord,  Resolution  of,  es- 
tablishing Society  of  Comparative 
Legislation,  45 

Hobhouse's  Act,  on  poor  law  legis- 
lation, 61 

"Hodge-podge  Acts,"  6 

Holland,  Civil  Code  in,  153 

Home  Secretary  initiated  legislative 
measures,  62-63  ;  appointed  drafts- 
men, 63 

House  of  Commons,  Vigilance  of, 
prevents  miscellaneous  enactments 
in  one  bill,  6-7,  jealous  of  its  au- 
tonomy, 7-8 ;  facilitates  passing 
of  consolidation  bills,  41 ;  legisla- 
tive procedure  in,  on  public  bills, 
77-80 ;  standing  committees  of, 
80;  committee  of  the  whole 
House,  80-83 

House  of  Lords  and  money  bills,  8 

Ilbert,  Sir  Courtenay  Peregrine,  Ex- 
perience of,  in  drafting  legislative 
measures,  1-2 ;  Municipal  Cor- 
porations Act  of  1882,  19-23; 
Legislative  Methods  and  Forms, 
24n,  99 ;  difficulty  in  consolidat- 
ing Indian  Acts,  38 ;  English 
Society  of  Comparative  Legisla- 
tion rose  out  of  a  paper  by,  44-45  ; 
experiences  of,  during  committee 
stage  of  an  important  measure, 
83-84 ;  responsible  for  drafting 
the  Interpretation  Act  of  1889, 
118,  119;  the  Jews  of  Aden  and 
the  Indian  Succession  Act,  170- 
72 

Imperfections  to  be  avoided,  Ben- 
tham  on,  94-95 ;  chapters  on, 
deserve  study,  96-97 

Indexes  to  blue  books,  72 

Indexing  statutes,  30 ;  the  work  of, 
31;  agencies  for,  42-43;  ques- 
tions concerning,  49 


INDEX 


205 


India  or  the  Colonies,  Information 
about,  in  India  Office  and  Colonial 
Office  libraries,  73 

Indian  Codes,  The,  165-68;  Mac- 
aulay's  Penal  Code,  165-66  ;  Codes 
of  Civil  and  Criminal  Procedure, 
166-67;  codifying  Acts  or  codes, 
167-68 

Indian  Succession  Act  and  the  Law 
of  Moses,  168-72 

Interpretation  Act  of  1889,  118-19 

Interpretation,  General  rules  of,  119- 
21 

Irish  Land  Act  of  1870,  103 

Italy,  Delegated  legislative  power  in, 
142 ;  Civil  Code  in,  153 

James  I,  on  reforming  the  statutes,  26 

Japan,  Civil  Code  in,  153 

Jefferson,  Thomas,  Manual  of,  based 
on  the  practice  of  the  British  Par- 
liament, 183-84 

Jenkins,  Sir  Leoline,  drafted  bills,  60 

Jenkyns,  Sir  Henry,  Parliamentary 
counsel,  64-65 

Jews  of  Aden,  The,  and  the  Indian 
Succession  Act,  169-72 

Jones,  Chester  Lloyd,  Statute  Law 
Making  in  the  United  States,  5,  6 

Journal  of  English  Society  of  Com- 
parative Legislation,  45 ;  sum- 
maries of  current  legislation  in, 
50-51 ;  monographs  in,  53  ;  source 
of  legal  information,  73 

Judges,  The,  as  draftsmen,  58-60 ; 
Lord  Hardwicke  on,  59 

Judicature  Acts,  33 

King,  The,  made  orders  on  petition, 
56-57  ;  initiation  of  legislation  by, 
in  Tudor  times,  58 

Labour  questions,  Information  on, 
in  libraries  of  Home  Office  and 
Board  of  Trade,  73 

Langtcn,  Stephen,  Lord  Thring  on 
language  of,  in  Magna  Charta,  100 

Language,  Differences  of,  in  statutes 
of  different  dates,  38-39  ;  composi- 
tion and,  neglected,  91 ;  Bentham 
on  imperfections  in,  94-95 ;  on 
sentences,  97-98 ;  Lord  Thring  on 


confusion  in,  101-2 ;  style  and, 
109-12,  116-18 

Law,  Knowledge  of,  required  by 
legislators,  15,  16,  17 ;  sources  for 
study  of  the,  by  draftsmen,  113- 
14 ;  one  body  of  general,  given 
to  England  by  her  Plantagenet 
Kings,  172 ;  growth  of,  cannot 
be  stopped,  173 

Laws,  Requests  for  information 
about,  52-53 ;  must  be  submitted 
to  criticism  of  legislatures,  181-82, 
186-87 

Lawyers'  law,  Legislation  not  pri- 
marily concerned  with,  17,  188 

Legislation  by  bill  superseded  legis- 
lation on  petition,  58 

Legislation  by  reference,  125,  130-32 

LEGISLATION,  THE  COMPARATIVE 
STUDY  OF,  44-55;  The  English 
Society  of  Comparative  Legisla- 
tion, origin,  45  ;  collects  informa- 
tion about  statute  law,  46 ;  list 
of  questions  sent  to  various  govern- 
ments, 47-50:  summaries  of  cur- 
rent legislation  in  Journal  of,  50- 
51 ;  requests  for  information  on, 
50 ;  need  of  better  information,  52- 
53  ;  need  of  a  recognized  organ  for 
study  of  comparative  legislation, 
53-54  ;  value  of  the  study,  54-55 

Legislation,  current  English,  At- 
tempts to  improve,  24,  56,  sum- 
maries of,  50-51,  54  ;  ill-expressed, 
of  the  eighteenth  century,  60; 
share  of  executive  in,  enormously 
increased,  61-62 ;  the  old  system 
and  the  new,  62;  preceded  by 
official  inquiry,  70-71 ;  better 
control  over,  87,  88 ;  influence  of 
Bentham  on,  93-98 ;  Austin  on, 
98-99 

Legislation,  Delegated,  see  Legisla- 
tion, Subordinate 

Legislation,  Differences  between  con- 
ditions of  English  and  American, 
3,  10-12  ;  dissatisfaction  with,  12- 
15 ;  bulk  of,  administrative,  17 ; 
questions  concerning  methods  of, 
47-48 ;  all,  referential  in  widest 
sense,  125 ;  part  of  statesmanship, 
199-20 


206 


INDEX 


LEGISLATION,  FORMS  OF,  123-49 : 
Consolidation  bills,  123-27 ; 
amending  Acts,  127-30 ;  legisla- 
tion by  reference,  130-32 ;  dele- 
gated legislation,  132-39;  sub- 
jects of  private  bills,  132-34; 
procedure  for  passing  private  bills, 
135-37 ;  provisional  orders,  137- 
39  ;  statutory  rules  and  orders,  139, 
145 ;  growing  importance  of  ad- 
ministrative legislation,  139-40 ; 
continental  analogies,  140-42  ;  de- 
velopment of  legislative  powers  of 
the  executive,  143-44 ;  orders  in 
Council,  144  ;  advantages  and  dis- 
advantages of  delegated  legisla- 
tion, 145-49 

LEGISLATION,  MODERN,  SOME 
CHARACTERISTICS  OF,  181-200 : 
Comparative  study  of  legislation 
facilitated  by  general  agreement  as 
to  principles  of  procedure,  181-82  ; 
by  a  common  origin  of  modern 
legislatures  in  Parliament,  182—86 ; 
Napoleon  on  the  task  of  legisla- 
tures, 187  ;  modern  legislatures  not 
concerned  with  amending  "law- 
yers' law,"  188 ;  bulk  of  modern 
parliamentary  legislation  adminis- 
trative, 189-90;  necessity  for 
legislative  changes,  190-92  ;  means 
of  improving  statute  law,  192-94, 
198 ;  English  and  American  pro- 
cedure compared,  194-97 ;  legisla- 
tion a  part  of  statesmanship,  199- 
200 

Legislation  of  the  Empire,  The,  a  col- 
lection of  summaries,  1898-1907, 
51 

Legislation  on  petition,  56-58 

Legislation,  subordinate,  or  dele- 
gated, Questions  concerning,  50 ; 
relation  of  parliamentary  counsel 
to,  86-87 ;  statutory  rules  and 
orders,  139  ;  administrative  legis- 
lation, 139-40 ;  on  the  continent, 
140-42 ;  advantages  and  disad- 
vantages of,  145-49 

Legislative  Drafting  Research  Fund,  1 

Legislative  Methods  and  Forms,  by 
C.  P.  Ilbert,  24,  99 

Legislative  powers,  Delegated,  11-12 


Legislative  procedure,  Difference  of 
English  and  American,  194-97 

Legislative  reference  bureaus,  72-73 

Legislator,  Qualifications  for  a,  13-14, 
15-18 ;  must  know  legislation  of 
other  countries,  44 

LEGISLATURE,  THE,  AND  THE  DRAFTS- 
MAN, 1-23  :  English  and  American 
legislation  compared,  2-13 ;  Par- 
liament a  sovereign,  American 
Congress  a  non-sovereign  body, 
3-8 ;  government  legislation  in 
England,  9-10;  public  bills  and 
private  bills,  1 1 ;  dissatisfaction 
with  statute  law,  12-15;  knowl- 
edge required  by  legislator  and 
draftsman,  16-19 ;  illustration  of 
a  drafting  dilemma,  19-23 ;  eligi- 
bility of  women  to  seats  on  munic- 
ipal councils,  20-23 

Legislature,  Distinction  between 
functions  of,  and  of  executive,  9- 
10,  11-12;  task  of  the  modern 
popular,  189-92 

Legislatures,  State,  Powers  of,  not 
sovereign,  3,  5,  10;  limitations  of, 
4-10 

Libraries  of  government  departments, 
and  others,  sources  of  information, 
73 

Library  of  Congress,  No  English 
library  like  the,  74 

Liquor,  Consolidation  of  enactments 
relating  to,  41 

Local  Government  Act  of  1888,  20-22 

London  County  Council,  Eligibility 
of  women  to,  22 

Louis  XIV  and  Louis  XV,  Ordinances 
of,  codes,  157 

Lowe,  Robert,  established  office  of 
parliamentary  counsel,  64 ;  ob- 
jects aimed  at  by,  attained,  87- 
88 

Lowell,  Abbott  Lawrence,  Govern- 
ment and  Parties  in  Continental 
Europe,  181 

McCarthy,  Charles,  Work  of,  1 
Macaulay's   Penal    Code   for    India, 

165-66 
Macdonell,  Sir  John,  editor  of  Journal 

of  Comparative  Legislation,  45 


INDEX 


207 


Magna  Charta,  Lord  Thring  on  the 

language  of,  100 

Mansfield,  Lord,  systematised  com- 
mercial law,  28 
Mexico,  Civil  Code  in,  153 
Militia  Bill  of  1756,  Lord  Hardwicke 

on  the,  59 
Minister,  Duties  of  a,  in  preparation 

of  bills,  74;   responsibility  of,  75- 

76 
Misdescription,  Question  of  validity 

of  a  bill  on  ground  of,  7 
Money  bills  may  be  passed  by  House 

of  Commons  alone,  8 
Municipal    Corporations   Act,    1882, 

19  ;    provisions  of,  incorporated  by 

reference    in    Local    Government 

BUI  of  1888,  21 

Municipal     councils,     Eligibility    of 
,    women  on,  20 
Mutiny  Acts,  replaced  by  the  Army 

Act  of  1881,  107-8 

Napoleon  Bonaparte,  and  the  Con- 
stitution of  the  Year  VIII,  140-41 ; 
interest  of,  in  the  Code  Civil,  156, 
161-62 ;  on  the  task  of  legislatures, 
187 

National  Assembly,  Action  of,  on 
the  Code  Civil,  158-60 

National  Convention,  Action  of,  on 
the  Code  Civil,  160-61 

"  Nomography,"  see  Bentham,  Jer- 
emy 

"Obsolete,"  Why  use  of  the  term,  is 

avoided,  34 

Orders  in  Council,  143,  144 
Orders,  Statutory  rules  and,  139,  145 

Pannomion,  or  universal  code,  Ben- 
tham's,  93 

Parkinson,  Mr.,  Reports  on  legisla- 
tive drafting,  1,  44 

Parliament,  Sovereign  powers  of,  3-8, 
10;  reluctant  to  pass  consolidation 
bills,  39-40 ;  nature  of  business  of 
mediaeval,  56-58 

Parliament  Act  of  1911,  regulates 
relations  between  the  two  Houses 
of  Parliament,  8 

Parliament  of  1800,  authorized  the 


First  Commission  on  Public  Rec- 
ords, 28 

Parliamentary  committee,  Duties 
and  powers  of  a,  70-71 ;  reports  of, 
72 

Parliamentary  counsel  to  the  Treas- 
ury, Sir  C.  P.  Ilbert  held  post  of, 
2,  66;  a  member  of  the  Statute 
Law  Committee,  43  ;  overworked, 
43  ;  William  Harrison  the  first,  61 ; 
office  of,  established,  64 ;  appro- 
priation for,  65 ;  staff  and  func- 
tions of  office,  65-69  ;  instructions 
from  heads  of  departments  through 
the  Treasury,  67-69  ;  main  duties 
of,  with  current  legislation,  85 ; 
other  duties  of,  85-87 ;  not  suit- 
able to  conditions  in  United  States, 
89.  See  also  Draftsman,  Govern- 
ment 

PARLIAMENTARY  COUNSEL'S  OFFICE 
IN  ENGLAND,  ORIGIN  AND  FUNC- 
TIONS OF  THE,  56-69  :  Orders  made 
by  the  King  on  petition,  56-57 ; 
legislation  by  bill,  58  ;  Henry  VIII 
as  draftsman,  58;  Acts  of  Tudor 
period  framed  by  committees  of 
the  Privy  Council,  58;  after  the 
Restoration  by  the  judges,  58-59 ; 
drafting  in  the  eighteenth  century, 
59-60;  William  Pitt,  60;  evi- 
dence given  in  1833  by  William 
Harrison,  60-61 ;  share  of  execu- 
tive government  in  work  of  current 
legislation  increased,  61-62 ;  va- 
rious draftsmen  at  the  Home 
Office,  62-64;  Robert  Lowe  es- 
tablished office  of  parliamentary 
Counsel  to  the  Treasury,  in  1869, 
64  ;  its  staff  and  functions,  65-66 ; 
appropriations,  65 ;  growth  of  its 
responsibilities,  66-69 ;  objects 
aimed  at  by  establishment  of, 
attained,  87-88 

Parliamentary  procedure,  English, 
Story  of  adoption  of,  in  France, 
184-86 

Parnell,  Charles  S.,  used  Mutiny  Act 
as  an  instrument  of  obstruction, 
107 

Peel,  Sir  Robert,  improved  criminal 
law,  29 


208 


INDEX 


Penalties,  Ludicrous  expressions  of, 
101-2  ;  a  right  or  duty  incomplete 
without  a  sanction,  121-22 

Perjury  Act  of  1912,  41 

Petitions,  to  the  King  by  or  through 
Parliament,  56-58  ;  legislation  on, 
58 

Pitt,  William,  Arrangements  by,  for 
preparations  of  bills,  60,  61 

Pollock,  Sir  Frederick,  The  Genius  of 
the  Common  Law,  12  ;  on  Desultory 
Legislation,  13-14,  15 

Poor  law  legislation,  61 

Pope,  Statutes  against  powers  of  the, 
34 

Portugal,  Civil  Code  in,  153 

Pothier,  Work  of,  in  unifying  French 
law,  157 

President,  Powers  of,  over  legislation, 
10 

Presidential  government,  based  on 
separation  of  legislature  and  exec- 
utive, 10 

Prime  minister,  and  cabinet,  mem- 
bers of  Parliament,  9 

Private  Act,  deals  solely  with  the 
rights  of  individuals,  134-35 

Private  bills,  Distinction  between 
public  bills  and,  11 ;  subjects  dealt 
with  in,  132-34 ;  form  and  pro- 
cedure for  passing,  135-37  ;  elabo- 
rate and  expensive,  136-37 

Private  members'  bills,  9,  61-62; 
disposition  of,  84-85 ;  different 
from  private  bills,  134 

Privy  Council,  Committees  of  the, 
framed  Acts,  58 

Provisional  orders,  137-39 

Public  bills,  Distinction  between 
private  and,  11 ;  procedure  on  in- 
troduction of,  77-80;  committee 
stage,  80-82 ;  report  stage  and 
third  reading,  82-83 

Putnam,  Herbert,  Memorandum  on 
bill  drafting,  1,  44 

Readings,  of  bills,  in  House  of  Com- 
mons, 79-80 

Reference,  Method  of  legislation  by, 
20-21 

Reform  Act  of  1832,  29;  changed 
responsibilities  of  government,  62 


Reform  Bill  of  1867,  Lord  Thring  on 
Disraeli  and  the,  104-5 ;  rapid 
work  in  re-drafting,  105 

REFORM  OF  THE  ENGLISH  STATUTE 
BOOK,  THE,  24-43:  Edward  VI's 
Discourse  on  the  Reformation  of 
Abuses,  25 ;  Sir  Nicholas  Bacon's 
scheme,  25 ;  James  I  on,  26 ;  Sir 
Francis  Bacon's  proposition,  26- 
27 ;  committees  on,  in  time  of  the 
Commonwealth,  27 ;  Reports  of 
1796,  28 ;  Statutes  of  the  Realm, 
28-29;  Reform  Act  of  1832,  29; 
Brougham's  Commission  of  1833, 
29 ;  subsequent  commissions,  29- 
30 ;  indexing,  31 ;  Statute  Law  Re- 
vision Acts,  32-34;  Statutes  Re- 
vised, 34-36 ;  consolidation,  36- 
41 ;  the  Statute  Law  Committee, 
42-43 ;  parliamentary  counsel  to 
the  Treasury  or  government  drafts- 
man, 43 

Registering  and  indexing,  see  Index- 
ing 

Reilly,  Sir  Francis,  skilful  draftsman, 
19 

Remedies,  Chapters  on,  in  Bentham's 
Nomography  deserve  study,  96—97 

Revised  Statutes,  see  Statutes  Re- 
vised, English 

Revision  of  statutes,  30;  a  difficult 
task,  32-34 ;  agencies  for,  42-43 

Roseberry,  Lord,  President  of  So- 
ciety of  Comparative  Legislation, 
45. 

Royal  commissions  hold  inquiries 
before  legislation,  70-71 ;  reports 
of,  72 

Royal  proclamations  have  in  no  sense 
the  force  of  law,  144 

Rules  of  interpretation,  General, 
120-21 

Sanction,  civil  or  criminal,  Defini- 
tion of,  and  rules  for,  121-22 

Schedules,  145 

Sentences,  Bentham  on  structure  of, 
97;  Lord  Thring  on,  109;  short 
and  simple,  117.  See  also  Lan- 
guage 

Shaftesbury,  Lord,  see  Cooper,  Ashley 

Sherbrook,  Lord,  see  Lowe,  Robert 


INDEX 


209 


Sovereignty  of  Parliament,  3-8,  10, 
144 

Spain,  Civil  Code  in,  159 

Speaker  of  House  of  Commons, 
Powers  of,  over  scope  of  bills,  6-7 ; 
determines  what  are  money  bills, 
8 

Statute,  Composition  and  language 
of  a,  91,  109-12,  117-18 ;  subject- 
matter,  113-15 ;  arrangement,  115— 
16;  Interpretation  Act  of  1889, 
and  general  rules,  118-21 ;  incom- 
plete without  a  "sanction,"  121-22 

Statute  book,  English,  Early  at- 
tempts at  reform  of,  24-27,  in 
eighteenth  century,  28 ;  report  of 
1796,  28 ;  work  of  commissions  in 
nineteenth  century,  29-31,  revision 
acts,  32-34.  See  also  REFORM  OF 
THE  ENGLISH  STATUTE  BOOK 

Statute  Law  Commission  of  1854,  29- 
30 

Statute  Law  Committee,  publishes 
annual  index,  31 ;  members  and 
functions  of,  42-43 

Statute  law,  Dissatisfaction  with,  in 
England  and  United  States,  12,  13  ; 
Sir  Frederick  Pollock  on,  13-15; 
knowledge  of,  required,  18 ;  at- 
tempts to  improve,  24,  31-32; 
revision  bills,  33-34 ;  consolida- 
tion and  codification  of,  36-41 ; 
reform  of,  39-40;  agencies  for  re- 
forming, 42-43 ;  questions  con- 
cerning, in  different  parts  of  British 
dominions,  47-50;  means  of  im- 
proving, 192-94,  198.  See  also 
Legislation,  Public  Bills 

Statute  Law  Revision  Acts,  32 ;  task 
of  preparing,  32-34 

Statute  of  Distributions,  60 

Statute  of  Proclamations  passed,  143  ; 
repealed,  144 

Statute  of  Waste,  57-58 

Statutes,  American,  Vast  number  of 
matters  regulated  by,  11-12 

Statutes,  Improvement  in  form  of,  87, 
88 ;  questions  concerning  publica- 
tion and  revision  of,  48-49.  See 
also  Draftsman. 

Statutes  of  Provisors,  against  powers 
of  the  Pope,  34 


"Statutes  of  the  Realm"  published, 

28-29 
Statutes,  Revised  English,  published, 

34 ;  utility  of,  35-36 
Statutory  rules  and  orders,  139,  145 ; 

published  annually  with  index,  149 
Stephen,  Sir  James  Fitzjames,  on  the 

draftsman,  106 
Stokes,    Whitley,     Draftsman     and 

editor  of  Indian  Codes,  168 
Style,  see  Language 
Switzerland,  A  Civil  Code  in,  153 

Thompson,  David,  Reports  on  legis- 
lative drafting. 

Thring,  Henry,  Lord,  parliamentary 
draftsman,  63,  64 ;  Instructions  to 
Draftsmen,  99 ;  Practical  Legisla- 
tion, 100-2 ;  ludicrous  expressions 
in  statutes,  101-2 ;  reminiscences 
of  Gladstone  and  Disraeli,  102-5; 
rapid  work  of,  on  Reform  Bill, 
104-5  ?  warnings  to  draftsmen, 
105-6  ;  Army  Act  of  1881,  107-8  ; 
his  book  as  a  text-book,  108-9 

Title  requirements,  C.  L.  Jones  on,  6 

Treasury  bench,  Some  one  on,  intro- 
duces government  bills,  9 

Treasury  minute  of  1869,  64 

Treasury,  Relation  of  the,  to  prep- 
aration of  bills,  64,  67,  68-69 

Tudor  period,  Legislation  of  the,  58, 
143 

Unconstitutional,  Meaning  of,  in 
England,  3 ;  in  United  States,  4 

Validity  of  an  Act  not  questioned  in 
a  court  of  law  in  England,  5 

Walpole,  Sir  Robert,  built  up  Cabinet 
system  of  government,  28 

Westbury,  Lord,  on  revision  of 
statutes,  32-33 

Whitelock,  Bulstrode,  on  statute  re- 
vision committee,  27 

Window  Tax  Act  of  1747,  6 

Women,  Eligibility  of,  on  municipal 
councils,  19-20,  21,  22 

Wood,  Sir  Charles  on  laws  proposed 
by  independent  members,  61-62 


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RETC'D  LD 


LD  21A-60m-3,'65 
(F2336slO)476B 


General  Library 

University  of  California 

Berkeley 


UNIVERSITY  OF  CALIFORNIA  LIBRARY 

*  :•  ;*  . 


